Shimizu Europe Ltd v Automajor Ltd

Shimizu Europe Ltd v Automajor Ltd

The adjudicator's alleged mistaken understanding that the employer had informed him that it accepted that the variations claims could not be challenged did not mean that the adjudicator had no jurisdiction to include in his award the total amounts claimed respect of variations

Technology and Construction Court
His Honour Judge Richard Seymour QC
17 January 2002

The contractor sought the enforcement of the unpaid balance of the amount of the adjudicator's decision by way of summary judgement. The employer had already paid part of the total sum awarded to the contractor but refused to pay the balance on the ground that the adjudicator had misunderstood a statement it made to him at the conclusion of the adjudication proceedings. The employer contended that it had not said to the adjudicator that it accepted that the disputed variations could not be challenged in the adjudication proceedings by reason of the adjudicator having already concluded that the items in question were not "true" variations (whereas the adjudicator proceeded on the basis that the employer had expressed such an acceptance).


Judge Seymour rejected the employer’s contention on the basis that the proper mechanism for correcting any error made by the adjudicator was in final account negotiations or in court or arbitration proceedings rather than by challenging the award on jurisdictional grounds. This was because it had become well-established that an adjudicator had the jurisdiction to make a mistake provided that he asked himself the questions referred to him and sought to answer those questions in his decision.


The judge also held that the employer had in any event foregone any opportunity it might otherwise have had to object to the adjudicator's award of a specified sum to the contractor by paying part of the sum awarded and by inviting the adjudicator to correct his decision under the slip rule in respect of the other part. If there were grounds for objecting to the decision, the whole of the relevant decision had to be either accepted or challenged. The adjudicator's alleged error was reached in the course of reaching a conclusion on how much was due to the contractor and was not a decision on a separate question referred to him.


Advice Note

Even if an adjudicator makes a mistake as to the meaning of a statement made to him during the course of the adjudication and bases his decision on that mistake, this does not mean that he acted without jurisdiction.