GPS Marine Contractors v Ringway Infrastructure Services [2010] EWHC 283 (TCC)

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(1) A general reservation in relation to the jurisdiction of the adjudicator was sufficient to preserve the respondent’s rights to resist enforcement of the adjudicator’s award on grounds of lack of jurisdiction.  (2) Where the parties to an adjudication disagree as to whether or not a compromise or withdrawal of the dispute had taken place before the dispute was referred, then, where the resolution of the disagreement will involve the adducement of oral evidence, an application to enforce the adjudicator’s decision by way of summary judgment will not be granted.  (3) An agreement between the parties that an adjudicator had made an error of fact or law in his decision will not mean that the adjudicator’s decision is no longer binding unless it enables the Court to come to a final determination of the dispute.  (4) It is not open to a party to challenge an adjudicator’s decision on the basis that it was obtained by fraud by reformulating as fraud facts and matters that it was aware of and addressed at the time of the adjudication but without alleging fraud  (5) The refusal by an adjudicator to take into account a Rejoinder served two days before the date by which he was required to reach his decision is not necessarily a breach of the rules of natural justice. 

Technology and Construction Court, Mr Justice Ramsey


Ringway Infrastructure Services Ltd (“Ringway”) was the operator of a facility on the Thames at Dagenham where aggregates were imported by boat.  GPS Marine Contractors Ltd (“GPS”) was employed by Ringway to dredge the berth under an agreement made in May 2008 (the “May Agreement”).   The dredging works were made more difficult by the presence of debris in the berth, and the parties reached an agreement in relation to the additional work (the “June Agreement”). The parties fell into dispute as to the value of GPS’ works.  GPS claimed payment in the sum of £319k, of which Ringway paid £101k.  GPS and Ringway met to discuss the dispute on 20 July 2008 (the “July meeting”).  Ringway alleged that at the meeting the parties agreed that Ringway would pay for certain works and refrain from bringing a claim against GPS, and that in return GPS would drop certain claims against Ringway.  GPS alleged that no agreement was reached at the July meeting.

GPS referred the dispute to adjudication under Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”).  Ringway challenged the jurisdiction of the adjudicator on a number of grounds, and reserved its right to raise further jurisdictional challenges once it had more time to investigate.  The adjudicator considered the jurisdictional challenges raised by Ringway and concluded that he did have jurisdiction.  Ringway explicitly reserved its rights with reference to the jurisdiction of the adjudicator in its Response.  The adjudicator ultimately ordered Ringway to pay GPS £214k plus VAT and fees of £11k.  Ringway did not pay up, and GPS sought to have the decision enforced by way of summary judgement.   


The Court addressed the following issues:

  • Whether a compromise or withdrawal of the claims had been agreed at the July meeting, thereby depriving the adjudicator of jurisdiction;
  • Whether Ringway’s general reservation as to the adjudicator’s jurisdiction was sufficient to preserve its rights to resist enforcement on the above ground; 
  • Whether the adjudicator lacked jurisdiction because, contrary to the provisions of the Scheme, two disputes were referred to him (one in relation to the measured work under the May Agreement and the other for the claim associated with the debris under the June Agreement), not one;
  • Whether the decision of the adjudicator was no longer binding because he had determined that the method statement was not a contract document, but the parties had since agreed in the court proceedings that it was;
  • Whether the adjudicator’s decision had been obtained by fraud, in that GPS had been reckless as to the truth of statements made in support of its claim; and
  • Whether there had been a breach of natural justice, as the adjudicator had declined to take into account Ringway’s submissions in its Rejoinder.


The Court held:

  • Ringway had established a real, but weak, prospect that they could successfully defend the enforcement on this basis that there had been a compromise or withdrawal of claims at the July meeting and that the adjudicator had therefore lacked jurisdiction.
  • Although the use of a general reservation as to jurisdiction is undesirable, it remains sufficient to protect one’s rights.  The words of general reservation used in this case were sufficiently clear to prevent Ringway's subsequent participation in the adjudication from amounting to a waiver of any jurisdictional argument, including one based on the alleged agreement of compromise or withdrawal.
  • On the facts the dispute referred to the adjudicator concerned one dispute (payment for work carried out) under one contract, as the June Agreement merely served to vary the May Agreement.  
  • Where the parties agree on an issue in terms which contradict the finding of an adjudicator on that particular issue, this will only lead to the adjudicator’s decision losing its temporary binding nature if it enables the Court to come to a final determination of the dispute.  In this case the parties had not reached agreement as to the payment due for the dredging works.  At most the parties had agreed that the adjudicator made an error of fact or law but that did not affect the temporarily binding nature of the decision.
  • With reference to Ringway’s allegation of fraud, it was clear that Ringway was aware of certain inconsistencies between invoices and claimed figures during the course of the adjudication, and had raised a case concerning those inconsistencies during the course of adjudication.  Ringway could not rely on those same matters, reformulated as fraud, to subsequently challenge the findings of fact or law of the adjudicator so as to resist enforcement (see SG South Limited v King’s Head Cirencester LLP [2009] EWHC 2645 (TCC)).    
  • The Court held that the adjudicator’s refusal to take Ringway’s submissions in the Rejoinder into account when coming to his decision did not  constitute a breach of the rules of natural justice.  In so determining  the Court was moved by the following considerations:
    • The adjudicator’s timetable was a fair one.
    • A rejoinder, even in litigation, requires permission.
    • The adjudicator had told Ringway that he did not give permission for a rejoinder.
    • Ringway had sought to serve a Rejoinder two days before the date when the adjudicator’s decision was due.
    • The period of 28 days need not be extended by a party and, on the facts, this was a case in which the adjudicator could reach a fair decision within that period.  
  • In conclusion, because Ringway had succeeded on the issue concerning the alleged compromise or withdrawal of the claims, GPS would not be awarded summary judgement.
  • However, since that issue was a short one, the Court gave directions for a hearing at an early date to determine the issue.  Further, since the Ringway’s case on this issue was weak, the Court ordered that Ringway should lodge the sum claimed in court as condition of being given permission to defend the claim and pending the outcome of the short hearing to determine what happened at the July meeting.

This summary was provided by CMS Cameron McKenna LLP.

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