Harris Calnan Construction Co. Ltd v Ridgewood (Kensington) Ltd [2007] EWHC 2738 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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

If a respondent does not reserve his position in relation to any jurisdictional challenge he raises in an adjudication, the court may imply that this means that the respondent is content to be bound by the adjudicator’s decision on the jurisdictional challenge.

His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction Court

Background

The Defendant raised the argument in the adjudication that the adjudicator did not have the necessary jurisdiction to decide the dispute because there was no contract in writing.  The adjudicator considered this submission and decided that there was a contract in writing.  Therefore, the jurisdictional challenge failed.

An issue that arose in enforcement proceedings was whether a defendant who has raised a jurisdictional challenge in an adjudication, but without expressly reserving his rights on the issue, is then bound by whatever decision on jurisdiction, which is reached by the adjudicator.

Decision

His Honour Judge Coulson QC held that, in the circumstances, there was a contract in writing, therefore the jurisdictional challenge should fail. The court added that, “a party who has a jurisdictional challenge in adjudication has a clear choice. He can agree that the adjudicator should decide the question of jurisdiction, and to be bound by that result. Alternatively, he can reserve his right to argue that, whatever the adjudicator decides, the adjudicator did not have jurisdiction to reach that conclusion”.

In addition, the judge found that, on the facts, the Defendant would be unable to establish that the adjudicator was arguably wrong in the conclusion that he had reached.  Indeed, it appeared to him that the adjudicator was almost certainly correct in saying that there was a contract in writing.  All of the terms had been agreed.  All that was missing was a set of documents that made the contract more formal (the contract was a letter of intent).  That however did not mean that there was not a contract in writing.

NB - This decision is inconsistent with other case law (including a Court of Appeal decision) on this issue. 

This summary was provided by CMS Cameron McKenna LLP.

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

Click here to read full-screen | Click here to print the case