R C Pillar & Son v The Camber [2007] EWHC 1626 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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

Where a responding party participates in an adjudication having reserved its right to challenge the appointment of the adjudicator on jurisdictional grounds, it may lose that right if it advances counter-claims of its own in the adjudication.

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

Pillar, a building contractor, sought to enforce an adjudicator’s decision in its favour against Camber, the party for whom the work from which the dispute arose was carried out.  From the outset of the adjudication, Camber had challenged the jurisdiction of the adjudicator, stating in its response document that it would only take part in the adjudication on the basis that such action would not prejudice its case that the adjudicator had no jurisdiction.

However, the response document issued by Camber contained not only a defence to the claims made by Pillar, but also a number of cross-claims that went beyond that which was necessary to defend the claims brought by Pillar.  Under the applicable adjudication rules, the adjudicator had the power to add at his discretion additional disputes, which were closely related to the dispute originally referred to him.  He exercised this power and duly decided all of the claims and counter-claims submitted to him.
 
HHJ Thornton QC found that the response document submitted by Camber made positive claims, which effectively constituted an offer to Pillar to extend the adjudicator’s jurisdiction so that, in return for Camber agreeing to the adjudicator having jurisdiction to decide Pillar’s claims, Pillar would agree to the adjudicator deciding Camber’s cross-claims.  Pillar accepted Camber’s offer.  In other words, there was an ad hoc agreement to adjudicate the dispute, the effect of which was that Camber’s jurisdictional objection advanced in its first response document was withdrawn.  As all of Camber’s defences to the application for enforcement of the adjudication decision related to the jurisdiction (or lack thereof) of the adjudicator, the existence of an ad hoc agreement to adjudicate was held to be fatal to Camber’s case.  The court therefore found that the adjudicator’s decision was enforceable.

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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