Osc Building Services Ltd V Interior Dimensions Contracts Ltd
Even if the contractor had a good ground for challenging the adjudicator's jurisdiction, it nevertheless submitted to the adjudicator's jurisdiction
8 January, 2009
The sub-contractor contended that if, contrary to what Ramsey J held, the contractor was right to contend that the adjudicator under the notice of adjudication did not have jurisdiction to decide the dispute between the parties, it was not open to the contractor to raise this jurisdictional challenge on the ground that the contractor failed to raise the challenge during the course of the adjudication. The contractor in opposing this contention relied on the decision of Judge Seymour in Mecright v TA Morris Developments (2001) in which he considered the provision in paragraph 8(1) of the Scheme for Construction Contracts, which dealt with whether more than one dispute could be referred to an adjudicator and provided that the adjudicator could, with the consent of all parties to those disputes, adjudicate at the same time on more than one dispute under the same contract. Judge Seymour stated that such consent or agreement had to be express and was not to be implied from conduct or in some other way. Ramsey J accepted the sub-contractor's contention. Little assistance was to be gained from Judge Seymour's decision in Mecright v TA Morris Developments (2001) because that decision dealt with paragraph 8(1) of the Scheme and where there was a provision for consent to be given, more formality was needed in principle than otherwise. On the basis of the decisions referred to in Thomas-Fredric's v Wilson (2004), where a party submitted to the jurisdiction of an adjudicator without raising any objection, the general principles set out by Devlin J in Westminster Chemicals & Produce v Eicholz & Loeser (1954) applied (as applied by Dyson J in The Project Consultancy Group v The Trustees of the Gray Trust (1999)). Those general principles were that (i) There had to be a protest against the adjudication continuing to the effect that the adjudicator did not have jurisdiction to deal with a particular dispute and (ii) If a party did not protest, that party accepted the submission of that particular issue to the jurisdiction of the adjudicator. In the instant case the contractor did not deal with the position at all, proceeded with the adjudication, responded to the claims made both in the notice of adjudication and in the referral very fully and raised raised a jurisdiction point which was not relevant to the contractor's jurisdictional challenge in the enforcement proceedings.