Farebrother B.S. Ltd v Frogmore Investments Ltd [2001] SF101587

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

Under the TeCSA Adjudication Rules 1999, the adjudicator can rule on his own jurisdiction and the scope of the adjudication. Such decision would be binding on the parties. The approach in KNS Industrial Services v Sindall was approved.

HHJ Gilliland QC, Technology & Construction Court

20 April 2001

FI employed FBS as a building contractor. A dispute arose over the extension of time due to FBS, and FBS submitted this dispute to adjudication under the TeCSA Adjudication Rules (1999). FBS's notice of adjudication sought an extension of 22 weeks together with additional payment for loss and expense. FBS' subsequent referral notice sought a longer period of time. FI alleged that FBS was in critical delay and sought to set off other sums by way of counterclaim.

The adjudicator declared that an extension of 22 weeks was due and that loss and expense should be paid. He was not obliged to give reasons for his decision. However, he stated that he had decided he did not have jurisdiction to deal with FI's counterclaim, nor could he order more time than had been claimed in the notice of adjudication. FBS sought to enforce the decision by summary judgment. FI opposed this, saying the adjudicator failed to deal with its claim, and thus had not dealt with an essential and important part of FI's case.

The Court considered on a reading of the decision that it was not possible to say with certainty whether the adjudicator had disregarded FI's claims. It was possible that he had considered them and had, rightly or wrongly, rejected them. Alternatively, the adjudicator could have considered both parties' submissions before him and decided that he could not consider FI's claim as FI had failed to serve appropriate notices.

The Court decided that an adjudicator's failure to take account of an issue was not a matter going to jurisdiction, but to the conduct of the proceedings. Such an error would, in principle, be within his jurisdiction. Further, if he had decided that he had no power to deal with FI's claim, paragraph 11 of the TeCSA Rules stated that the scope of the adjudication would be matters identified in the notice requiring adjudication with further matters that had to be included to make the adjudication effective and/or meaningful. Under paragraph 12 of the Rules, the adjudicator had power to rule on his substantive jurisdiction and the scope of the adjudication. Therefore, his decision would be binding.

FI said that its claim had not been challenged by FBS, therefore the Court should order payment of the adjudicator's decision less FI's claim. In effect, FI said that the decision was right in part but not in full. The Court stated that it should not seek to whittle down the adjudicator's decision and find reasons for intervening. The Court approved the approach taken by HHJ Humphrey LLoyd QC in KNS Industrial Services v Sindall. The Court should accept the award as it stood and not try to vary it. A party could not pick and choose amongst the decisions given or characterise part as unjustified.

Under the TeCSA Adjudication Rules 1999, the adjudicator can rule on his own jurisdiction and the scope of the adjudication. Such decision would be binding on the parties. The approach in KNS Industrial Services v Sindall was approved.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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