Brenton A.J. v Palmer [2001] TCC 19.01.2001

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The adjudicator had made a decision which he was empowered under the Act to make, and if he had made any error in it, which in fact results in his having no jurisdiction, it was an error of fact which it was certainly within his jurisdiction to make.

His Honour Judge R. Havery, QC, Technology and Construction Court

19 January 2001

M was engaged to supply and fit electrical equipment to the premises of either P or his company, L. The adjudicator, Dr Robert Gaitskill QC, ordered P to pay M £26,000 plus fees. During the adjudication, he was asked to consider whether he had jurisdiction to make an award, because the true party to the relevant contract was L, not P. The adjudicator decided as a question of fact that the contracting party was P.

At M's application for summary judgment, P claimed that if the adjudicator was wrong in his finding of fact as to the contractual party, then he would have had no jurisdiction to decide the dispute. It was not suggested that, if he was right, he had erred in law in deciding that he had jurisdiction.

The Judge decided that the adjudicator's finding that P was a party to the contract was not something that could be questioned in enforcement proceedings, since it was properly made and the adjudicator had not erred in law in reaching the conclusion that he had jurisdiction, having regard to that finding. He referred to The Project Consultancy Group v The Trustees of the Gray Trust and Macob Civil Engineering v Morrison Construction Ltd and stated that if the decision on an issue referred is wrong in fact or law, or a procedural error was made in reaching the decision which invalidates it, it is still a decision on the issue. Different considerations apply where the adjudicator purports to make a decision which he is not empowered by the Act to make. In this case, the adjudicator had made a decision which he was empowered under the Act to make, and if he had made any error in it which in fact results in his having no jurisdiction, it was an error of fact which it was certainly within his jurisdiction to make.

Therefore, the award was binding to the same extent as any adjudicator's award, ie provisionally and subject to any further proceedings.

P had requested an adjournment due to illness in order that he could give evidence on the question of the circumstances in which the contract was made which would throw light on the true contracting party, however this was refused on the basis that it would not be relevant or admissible so far as enforcing the adjudicator's award is concerned.

The adjudicator had made a decision which he was empowered under the Act to make, and if he had made any error in it, which in fact results in his having no jurisdiction, it was an error of fact which it was certainly within his jurisdiction to make.

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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