WSP CEL Limited v Dalkia Utilities Services Plc [2012] EWHC 2428

This summary was provided by CMS Cameron McKenna LLP.

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In this case, the Court decided that the effect of an agreement entered into by the parties setting out a procedure for dealing with a dispute concerning the validity and value of claims incorporated into a final account was to give an adjudicator  jurisdiction to make a binding ruling on his own jurisdiction. Even if that was wrong the parties had in their exchanges at the beginning of the adjudication made an ad hoc agreement giving the adjudicator the authority to make a binding decision on his jurisdiction.  Further, even if the adjudicator had no authority to determine his own jurisdiction he had in any event plainly been right in holding that he did have jurisdiction to determine the claims in question.

Technology and Construction Court, Queen’s Bench Division, The Hon Mr Justice Ramsey


Dalkia Utilities Services (“Dalkia”) entered into a consultancy services contract with WSP CEL Limited (“WSP”) on 12 May 2009 (the “Contract”). The Contract engaged WSP to carry out engineering, project management and construction management services in relation to a biomass energy plant in Fife, Scotland. The Contract was subject to the NEC 3 Professional Services Contract (June 2005) terms (the “NEC Conditions”), Option Clause W1 of which provided for adjudication.

On 6 May 2011, Dalkia terminated the Contract. On 22 August 2011, WSP served the final account, seeking payment on termination in respect of both compensation events and ‘Loss and Expense’. Dalkia did not respond substantively and WSP initiated adjudication proceedings, seeking declarations as to the effect of the compensation event provisions in the NEC Conditions.

On 21 December 2011, the adjudicator decided that for a number of claims Dalkia had not accepted the relevant compensation events or quotations, that for certain claims the NEC machinery for compensation events had come to an end and a dispute had arisen, and that in relation to the ‘Loss and Expense’ claim, a dispute had arisen giving a right to adjudicate after 1 December 2011.

On 28 December 2011, WSP gave notification to Dalkia of a dispute to be referred to adjudication concerning the amount due to WSP, as set out in the final account. This  led to an agreement dated 13 January 2012 (the “Consent Agreement”), which provided for Dalkia to respond to the final account, which Dalkia did, followed by without prejudice meetings with the aim of reaching a negotiated settlement. The Consent Agreement provided that either party could terminate the negotiation process and WSP was then entitled to refer to adjudication any aspects which remained disputed. Clause 6 of the Consent Agreement provided: "The effect and interpretation of this Agreement shall be subject to the exclusive jurisdiction of the Adjudicator in the first instance (and whose decision is final and binding on the Parties unless and until revised by the English Courts)."

On 22 February 2012, WSP served notice of adjudication on Dalkia, as provided for in the Consent Agreement.

Dalkia argued that, with regards to many of the issues, the adjudicator had no jurisdiction, as the time limits set out in the NEC Conditions for notification and referral of claims had now passed. Furthermore, to the extent that any of the claims sought to re-open issues already decided in the first adjudication, these too were outside the adjudicator’s jurisdiction. 

WSP responded that the adjudicator did have jurisdiction to determine the claims notwithstanding any expiry of time limits as this was expressly provided in the Consent Agreement. WSP invited the adjudicator to make a preliminary decision on the point under clause 6 of the Agreement. In reply, Dalkia conceded that clause 6 of the Consent Agreement gave the adjudicator jurisdiction in the first instance to decide the effect and interpretation of the Agreement but reserved its right to argue before the court that he had no jurisdiction to determine whether any claims within the final account were themselves barred by the operation of the time limits for the notification and referral of claims in the NEC Conditions. Dalkia invited the adjudicator to rule that the Consent Agreement did not have the effect of depriving Dalkia of the right to contend that the claims were barred and stated that it maintained its jurisdictional reservations previously communicated to the adjudicator.

On 17 March 2012, the adjudicator decided that he had jurisdiction to adjudicate the final account dispute and that this authority arose pursuant to the Consent Agreement. On 22 June 2012, the adjudicator held that WSP was entitled to £1,054,800.60 exclusive of VAT.  Dalkia did not pay and in July 2012 WSP commenced legal proceedings in which it sought to enforce the adjudicator’s decision by way of summary judgment.


The Court was asked to decide:

  • whether clause 6 of the Consent Agreement gave the adjudicator the right to make a binding ruling on his own jurisdiction;
  • if not, whether the parties had, in their exchanges at the beginning of the adjudication, agreed that the adjudicator should make such a ruling;
  • whether, if the adjudicator did not have jurisdiction to make a binding ruling on his own jurisdiction, he was nevertheless plainly right in finding that the Consent Agreement permitted WSP to adjudicate issues even where the time limits set down in the NEC Conditions had not been complied with.


The Court decided that:

  • although the Consent Agreement did not state that the adjudicator had jurisdiction to opine on jurisdictional issues, on the basis of terms contained in the Consent Agreement, a provision that the adjudicator should have exclusive jurisdiction to deal with disputes as to the effect and interpretation of an agreement dealing with dispute resolution would necessarily include the right to rule on the issue of jurisdiction arising out of the Consent Agreement;
  • clause 6 of the Consent Agreement clearly envisaged that the parties would be bound by such a ruling subject to review by the Courts in any proceedings for a final determination of the disputes;
  • in the exchanges at the beginning of the adjudication Dalkia had accepted that clause 6 had the effect that the Court had now found that it did have. This amounted to an ad-hoc agreement granting the adjudicator jurisdiction to determine his jurisdiction on a binding basis in the short term, subject to the Court’s ability to revise that decision as stated in clause 6 itself
  • the Consent Agreement had varied the clauses of the NEC Conditions which required claims to be notified and referred by particular time limits, so that the time to refer any aspect of the dispute concerning the validity and value of the claims incorporated into the final account was extended. The adjudicator was therefore plainly right in holding that he was not precluded from determining the dispute because of the time limits in the NEC Conditions;
  • accordingly WSP was entitled to summary judgment for the amount awarded by the adjudicator.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit


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