Aecom Design Build Ltd, the contractor, made a Part 8 claim against Staptina Engineering Services Ltd, the sub-contractor, to enforce an adjudication decision. This case is unusual in that supposedly successful party to adjudication sought to limit the effect of the adjudicator’s decision in its favour. Aecom suggested that the adjudicator had exceeded her jurisdiction in outlining the deductions it would be permitted to make under a sub-contract.

Aecom entered into a sub-contract with Staptina to undertake mechanical installation works at Long Reach where Thames Water Utilities Ltd was the employer. The sub-contract was NEC3 Engineering and Construction Short Subcontract form (June 2005) with amendments. Upon termination of the contract by Aecom, disputes between the parties involved on whether the Aecom was entitled to make any deductions from sums otherwise due to the Staptina. There were three adjudications between the parties by a single adjudicator. This case covers the third adjudication where the adjudicator decided that Aecom could make deductions confined to “a deduction of the sum (if any) it would have cost Staptina to carry out the relevant rectification works…” Aecom applied for declaratory relief arguing that the adjudicator had exceeded her jurisdiction to outline the details of the deduction and breach of natural justice as Aecom was not allowed to offer full submissions on the nature of any permitted deductions.

Fraser J held that the adjudicator did not exceed her jurisdiction or breach the rules of natural justice and declined to make a declaration that would have severed parts of the adjudication decision “in a surgical fashion”. In rejecting breach of adjudicator’s jurisdiction, the court referred to Stellite Construction Ltd v Vascroft Contractors Ltd [2016] EWHC 792 (TCC) and rejected Aecom’s argument that the adjudicator was constrained to define the ability to make deductions for defective work as a “yes/no” question. Fraser J outlined that attempting to define a dispute with only two permissible answers is “fraught with difficulty”. Notice of Adjudication and Referral did not define the dispute by reference to how the deductions were to take place. It was also held that the parties did outline the issue in the adjudication. Faser J was brief when referring to the issue of natural justice. Referring to Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC), he rejected “the notion that an adjudicator in particular, with the very tight timescales that govern the process, must inevitably consult the parties again on her draft findings.” Although the court referred to the “catch all” provision in the Notice of Adjudication as a provision that may allow the adjudicator to make any necessary decision, it need not decide on such matter. Nonetheless, referring to various cases including Stellite, it was clear that “catch all” wording alone was unlikely to give the adjudicator “carte blanche” to exceed her jurisdiction.

This case reiterates the difficulties of limiting adjudicator’s decisions as courts will consider such arguments as severance of the decision. Fraser J also emphasised his objection to Aecom’s commencement of fourth adjudication as it is “inappropriate” to commence further adjudication if a part of the dispute had already been resolved by an adjudicator unless the subsequent adjudication is on the basis that the decided dispute is binding upon that subsequent adjudicator. Further, Aecom cannot behave as though the adjudicator’s decision “had already been set aside” when seeking to have part of it set aside.