The Defendant, Urvasco Ltd, engaged Cantillon Ltd under a JCT98 Private Without Quantities contract to carry out demolition, piling and other works at two buildings on the Strand in London. Disputes arose between the parties in relation to Cantillon's extension of time and related loss and expense claims. The dispute was submitted to an adjudicator in late June 2007. Following a five month adjudication, the adjudicator found for the Claimant in the sum of about £391,565 plus VAT.

Cantillon sought to enforce the adjudicator's decision. Urvasco argued that the adjudicator did not have jurisdiction and failed to follow the rules of natural justice. It was claimed that the adjudicator did not have jurisdiction to address or resolve any issue relating to a delay occurring in a period other than the specific 13 week period indentified by the Claimants in the referral. Urvasco also claimed that the adjudicator failed to give Urvasco any reasonable opportunity to make submissions and adduce evidence in relation to the amount of costs being incurred in the later period.

Mr. Justice Akenhead, at paragraph 55, reviewed the substantial caselaw as to the meaning of the term "dispute", and came up with the following propositions:

"(a) Courts (and indeed adjudicators and arbitrators) should not adopt an over legalistic analysis of what the dispute between the parties is.

(b) One does need to determine in broad terms what the disputed claim or assertion is.

(c) One cannot say that the disputed claim or assertion is necessarily defined or limited by the evidence or arguments submitted by either party to each other before the referral to adjudication or arbitration.

(d) The ambit of the reference to arbitration or adjudication may unavoidably be widened by the nature of the defence or defences put forward by the defending party in adjudication or arbitration."

Mr. Justice Akenhead did not follow the judgment of HHJ Seymour in Edmund Nuttall Ltd v RG Carter Ltd [2002] BLR 312, but rather took the view, at paragraph 55, that:

"[O]ne should look at the essential claim which has been made and the fact that it has been challenged as opposed to the precise grounds upon which that it has been rejected or not accepted. Thus, it is open to any defendant to raise any defence to the claim when it is referred to adjudication or arbitration. Similarly, the claiming party is not limited to the arguments, contentions and evidence put forward by it before the dispute crystallised. The adjudicator or arbitrator must then resolve the referred dispute, which is essentially the challenged claim or assertion but can consider any argument, evidence or other material for or against the disputed claim or assertion in resolving that dispute."

With respect to natural justice Mr. Justice Akenhead again reviewed the relevant caselaw and concluded at paragraph 57:

"(a) It must be first established that the Adjudicator failed to apply the rules of natural justice;

(b) Any breach of the rules must be more than peripheral; they must be material breaches;

(c) Breaches of the rules will be material in cases where the Adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is not peripheral or irrelevant.

(d) Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which must be assessed by any judge in a case such as this.

(e) It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving parties the opportunity to comment, or where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction -v- The London Borough of Lambeth [2002] was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation thereto."

Mr. Justice Akenhead held that the adjudicator did have jurisdiction to find as he did and did not breach the rules of natural justice. Cantillon was therefore entitled to have the decision enforced.

In obiter, the judge also made several propositions regarding severability and whether parts of an adjudicator's decision could be enforced and others not. He found that ‘if the decision properly addresses more than one dispute or difference, a successful jurisdictional challenge on that part of the decision which deals with one such dispute or difference will not undermine the validity and enforceability of that part of the decision which deals with the others.'