Shah engaged Aedifice to provide certain consultancy services in relation to the possible development of a nursing home. The development was subject to the provision of bank funding and did not go ahead. Aedifice submitted an invoice for services undertaken in preparation for the development. Aedifice was successful in the subsequent adjudication.

During the adjudication, Shah challenged the adjudicator’s jurisdiction as (i) there was not a contract between Shah and Aedifice; and (ii) if there was a contract, all of its terms were not evidenced in writing. At enforcement, Aedifice conceded that there were triable issues as to whether the contract was present, and/or evidenced in writing. Therefore, the only issue the judge was required to decide was whether Shah expressly or impliedly agreed that the adjudicator had jurisdiction to decide on his own jurisdiction, and, if not, whether Shah had sufficiently reserved his rights with regard to the adjudicator’s jurisdiction.

The decision was not enforced. Shah had neither expressly nor impliedly agreed to being bound by the adjudicator’s jurisdiction decision. In any event, Shah had sufficiently reserved his position. It was clear from the submissions in the adjudication that Shah had presented a jurisdictional challenge to the adjudicator and that this challenge was maintained in later submissions. Even though Shah had not reserved his rights using those express words, his ongoing reference to his jurisdictional challenge, through his submissions, was sufficient:

“A clear reservation can, and usually will, be made by words expressed by or on behalf of the objecting party. Words such as “I fully reserve my position about your jurisdiction” or “I am only participating in the adjudication under protest” will usually suffice to make an effective reservation; these form of words whilst desirable are not absolutely essential. One can however look at every relevant thing said and done during the course of the adjudication to see whether by words and conduct what was clearly intended was a reservation as to the jurisdiction of the adjudicator. It will be a matter of interpretation of what was said and done to determine whether an effective reservation was made. A legitimate question to ask is: was it or should it have been clear to all concerned that a reservation on jurisdiction was being made?”