RG Carter Ltd v Edmund Nuttall (Part I)
Technology and Construction Court
His Honour Judge Anthony Thornton QC
21 June 2000
It was common ground that there was a contractual relationship which constituted a “construction contract” for the purposes of the Construction Act. However, there was a jurisdictional dispute as to how the contract came into being or the full extent of the documents incorporated into the contract. The contractor contended that was therefore not open to the sub-contractor to refer its claim to adjudication and that if an adjudication were possible, the adjudicator should not continue to act because the contractual requirement for there to be a mediation prior to any adjudication being started had not been followed.
Judge Thornton held that the sub-contractor was in principle entitled to have its substantive disputes adjudicated notwithstanding this jurisdictional dispute. This was on the basis that the requirements of section 108(1) for there to be a construction contract and a dispute arising under the contract had been fulfilled and that the jurisdictional dispute was as much a dispute under the contract as any dispute as to the parties’ substantive contractual entitlements. The contractor’s contention that even if it was open to the sub-contractor to have an adjudicator appointed, he could not decide the contract’s terms by reason of such relief not being encompassed by the range of decisions open to the adjudicator should be rejected. This was on the basis that such a contention should be dealt with in the adjudication itself and that the court was solely concerned at this stage with "internal" or "threshold" jurisdictional questions relating to the ability to begin valid adjudication proceedings.
The judge also held that the contractor was not entitled to injunctive relief to implement the sub-contract provisions whereby the parties were not to adjudicate any difference until a mediation had first (unsuccessfully) taken place (at which point the difference was deemed to be a dispute). This was on the basis that these provisions, if implemented, would fetter the parties’ right to an entitlement to adjudication under the Housing Grants, Construction and Regeneration Act 1996
The courts are extremely unwilling to fetter the statutory right of a party to a construction contract to go to adjudication. This is so even if there is a jurisdictional dispute as to how the contract came into being and as to its terms.