Banner and Colchester entered into a contract that incorporated the GC/Works Form 1 of Contract and the provisions of Model Form 4. Colchester determined Banner’s employment and commenced an adjudication seeking a declaration that the contract had been validly determined. Banner commenced Part 8 proceedings seeking a declaration that the adjudicator did not have jurisdiction to decide the dispute that was referred to him.

Clause 59 of the contract gave the adjudicator power to vary or overrule any decision made by the Employer other than certain matters, including a determination notice, in which case the contract provided that the Employer’s only remedy would be financial compensation. Banner argued that Colchester were asking the adjudicator to overrule or vary its decision and therefore the adjudicator did not have jurisdiction.

The judge found that the adjudicator had jurisdiction under the Contract as Colchester was seeking to confirm the validity of the decision. The second issue the judge was required to consider was whether the contract was compliant with Section 108 of the Act. Colchester argued that if Banner was right in its argued interpretation of the clause, Clause 59 would not be compliant with the Act as it removed Colchester’s right to adjudicate a dispute at any time.

Although it was unnecessary to decide the point, the Judge indicated that, in his view, if adjudication provisions were not compliant with Section 108 of the Act, the wording of Section 108(5) suggested that the whole Scheme replaced the express terms, regardless of how many (or how few) of those terms failed to comply with the Act. The judge did not believe it should be for the court to piece together a compliant set of provisions from two different sources.