The claimant, Imperial Chemical Industries Ltd (‘ICI’), was the Employer and the defendant was Merit Merrell Technology (‘MMT’), the Contractor entered into the NEC Engineering and Construction Contract, 3rd edition, with various options including Option W2 in respect of adjudication. A total of four adjudications were commenced in respect of a long-running dispute between the parties.

At the second adjudication, the claimant sought the provision of various documents under the terms of the contract, but the defendant argued that it was entitled to a lien on the documents as a sum remained payable pursuant to its application for payment (application No.23). Mr Sliwinski, the second adjudicator decided that the claimant was entitled to be provided with the documents and noted that, absent a pay less notice from the claimant, application No.23 was payable, but because payment had not become finally due as at the contract termination date, the obligation to pay did not crystallise.

The defendant then referred to adjudication the dispute over its entitlement to payment pursuant to application No.23. Mr Wright, the fourth adjudicator concluded that “he was not bound by Mr Sliwinski’s comments on notices, it did not necessarily follow that he was not bound by his comments about payment following termination”.

However, Mr Wright “accepted MMT’s argument that that position was changed as a result of adjudication no. 3 and the decision that ICI had repudiated the contract” and concluded that the claimant could not rely on its own breach to avoid payment.

The issues were whether the claimant had raised any objection to the second adjudicator’s jurisdiction to determine the dispute referred to him and the second adjudicator had jurisdiction to decide the effect of the prior adjudication.

Jefford J granted summary judgment to enforce the fourth adjudicator’s decision, concluding that ICI had not made a jurisdictional challenge at the time of his appointment. The Judge restated “well-established that a party to an adjudication who takes a point that an adjudicator does not have jurisdiction over the dispute must raise that jurisdictional objection and reserve its position as soon as possible” as derived from Allied P&L Limited v Paradigm Housing Group Ltd [2009] EWHC 2890 (TCC). In this case, Jefford J noted that at no point in adjudication no. 4 or in the enforcement proceedings did ICI assert that the fourth adjudicator did not have jurisdiction over the dispute referred to him.

Jefford J concluded by stating “…what ICI is, in reality, seeking to do is resist enforcement of the adjudicator’s decision by trying to constrain his jurisdiction in a very particular manner by relying on comments made in earlier adjudications on matters not referred to the previous adjudicator, whilst having itself recognised that the present adjudicator has jurisdiction over the dispute referred to him.” The court said it would approach that sort of argument “with caution where there are serial adjudications”.

This case reminded that any objection to an adjudicator’s jurisdiction must be made at the earliest opportunity.