Fraser J granted summary judgment to enforce two decisions made by an adjudicator stating that the defendant's various challenges to enforcement failed. Fraser J outlined that the jurisdictional challenge based on a party’s reservations during the adjudication was an "example of a party 'scrabbling around' trying to find reasons not to comply with an adjudicator's decision". Adjudicator’s fee payments made by a party claiming jurisdictional reservations may waive or lose the right to maintain that objection. In the case here, the adjudicator’s terms and conditions said:

“1. Each party to the reference shall be liable for my fees on a joint and several basis save that if, in my sole discretion, I consider that I have no jurisdiction to proceed with the reference my fees shall be payable solely by the Referring Party

…

3. My fees will be payable notwithstanding that my decision is subsequently found by a court to be unenforceable by reason of lack of jurisdiction.”

The Claimant here said that neither party had expressly accepted the adjudicator’s terms during the adjudication. Silence cannot amount to acceptance and so the terms and conditions were not agreed. Mr Justice Fraser noted that the agreement of the Defendant to the adjudicator was done following a full reservation of right. Further, it is possible to signify acceptance of proposed contract terms by conduct and this is what the Defendant did.

Whilst there are cases where, by paying the adjudicator’s fees, a party has lost the right to object to a decision, this was not the case here. Taken together, the express terms of the letter reserving the Defendant’s rights and clause 3 of the adjudicator’s terms and conditions were “compelling” evidence to allow the Defendant to challenge jurisdiction on enforcement, regardless of the payment by the Defendant of the adjudicator’s fees.