Jacobs had entered into a main contract for the replacement of an existing power plant on a site in Scotland with a new biomass plant. The site was also occupied by a paper mill. The Employer planned to operate the plant and provide power to the paper mill and export surplus electricity to the Scottish National Grid. The new biomass plant would occupy about 10% of the whole site.

Jacobs engaged Laker Vent (“LVE”) under a subcontract for the supply, fabrication and installation of pipework at the biomass plant (“Subcontract”). The Subcontract did not expressly refer to adjudication or the Scheme, although it did state that it was governed by English law.

LVE commenced two adjudications in October 2013 and a third adjudication in November 2013. The same adjudicator was appointed for each adjudication. All three Notices of Adjudication referred to the HGCRA and the English Scheme. The Adjudicator issued his decisions on 7 January 2014. Jacobs requested a small correction to the first decision under the slip rule whilst at the same time giving a general reservation of position as to the adjudicator’s jurisdiction.

LVE applied for summary judgment to enforce the three decisions. Jacobs resisted on the grounds that (i) the “primary activity” of the site was power generation and so, in the absence of contractual adjudication provisions, LVE’s right to refer a dispute under the Subcontract was excluded under s.105(2)(c) HGCRA. Central to this issue was the meaning of “site” (i.e. was the site restricted to that of biomass plant or was it the whole site, including the paper mill?); (ii) the adjudicator’s findings in the first and third adjudications were inconsistent; and (iii) Scottish Law applied so the adjudicator lacked jurisdiction as he had been appointed under the English Scheme. LVE argued that Jacobs had affirmed the adjudicator’s first decision by asking for a correction under the slip rule and that the primary purpose of the site was paper manufacture so the exclusion under s.105(2)(c) did not apply.

The Judge enforced the decisions, finding that:

1. Jacobs had not affirmed the first decision as a general reservation was sufficient to allow a party to request a correction under the slip rule without waving its right to later challenge that decision. However, the Judge said Jacobs’ reservation did not extended beyond jurisdictional issues and so did not cover other arguments.
2. The “primary activity” of the site was paper making and not power generation. Therefore, the Subcontract was not excluded under s.105(2)(c) and was a “construction contract” for the purposes of the HGCRA.
3. The adjudicator had not been inconsistent with his findings in the first and third adjudications. However, even if there was an inconsistency Jacobs’ general reservation as to the adjudicator’s jurisdiction did not cover its inconsistency argument.
4. The Subcontract was governed by English Law and so the adjudicator had been appointed under the correct Scheme. However, if that finding had been wrong the adjudicator would have lacked jurisdiction as the issue went to jurisdiction.