Science and Technology Facilities v MW High Tech Projects UK Ltd (TCC - 21.10.2015)
SCIENCE AND TECHNOLOGY FACILITIES COUNCIL V MW HIGH TECH PROJECTS UK LTD
TECHNOLOGY AND CONSTRUCTION COURT
21ST OCTOBER 2015
The contractor’s solicitors stated in their first letter to the employer’s solicitors that (i) The contractor reserved its rights to raise any jurisdiction and/or other issues in due course whether previously raised or not and whether within the forum of adjudication or other proceedings and (ii) The contractor’s participation in this adjudication was entirely without prejudice to this right. The contractor’s solicitors stated in their second letter that (i) The contractor maintained that the employer’s notice of adjudication and any appointment of an adjudicator under it would be fundamentally flawed and result in any adjudicator appointed lacking the necessary threshold jurisdiction to determine the dispute referred (ii) However, the contractor agreed to the proposed adjudicator’s appointment because the appointment of the adjudicator proposed by the employer would ensure that a suitably competent person had the opportunity to review the jurisdiction which would be raised following his appointment and (ii) For the avoidance of any doubt, this agreement was not intended to confer any jurisdiction on the proposed adjudicator or the reference as a whole and was merely a pragmatic way of moving forward to having the issues regarding jurisdiction resolved.
Fraser J held that the statement in the second letter that the appointment of the adjudicator proposed by the employer was “merely a pragmatic way of moving forward to having the issues regarding jurisdiction resolved” did not (i) constitute an ad hoc adjudication agreement on the contractor’s part or (ii) mean that the contractor lost the right to challenge jurisdiction on enforcement.
The first letter to the employer’s solicitors amounted to a clear general reservation of rights concerning the adjudication. With the exception of the statement in the second letter that the appointment of the adjudicator proposed by the employer was “merely a pragmatic way of moving forward to having the issues regarding jurisdiction resolved”, there was nothing in the terms of their agreement in that letter to the adjudicator’s appointment that diluted, contradicted or undermined the general reservation of the right to challenge jurisdiction in the first letter. Unless the employer succeeded in showing that that statement, objectively construed, meant that those words demonstrated an intention on the contractor’s part to be bound by the adjudicator’s findings on jurisdiction, the contractor was entitled to challenge jurisdiction on enforcement. The second letter, when read as a whole, made it clear that (i) Jurisdiction was being challenged and (ii) It was on that basis that the adjudicator’s appointment was agreed by the contractor.