The claimant was a sub-contractor and the defendant was the main contractor in respect of work at Ashdown School. The claimant had carried out the installation of a boiler system. A written sub-contract order dated 10 July 1998, which included express terms and conditions had been issued. The sub-contract did not make provision for adjudication. Accordingly, adjudication and the Scheme was implied by virtue of Section 108 of the Act. The dispute was referred to adjudication and on 8 March 1999, the Adjudicator issued a decision stating that the defendant was to pay the plaintiff £103,665.80. The defendant failed to comply.

The defendant challenged enforcement of the Adjudicator’s decision on the basis that:

(1) There was no “construction contract”;
(2) the implied term of adjudication did not survive determination of the construction contract; and
(3) there should be a stay of any enforcement because of the existence of counterclaims.

HHJ Wilcox held that the sub-contract order was clearly a written construction contract within Section 107 of the Act.

On 19 November 1998 the main contract was determined on the basis of allegations of serious defects in the works. On 28 November 1998 a fire occurred causing considerable damage to the school. The loss adjuster believed that the fire resulted from the negligent installation of the boiler. Shortly after a Notice of Adjudication was sent to the defendant. The Academy of Construction Adjudicators appointed an adjudicator.

The defendant responded to the merits of the claim and relied in its defence upon the occurrence of the fire to defend the adjudication claim. They did not attempt to restrain the adjudication. They argued that the sub-contract had ended and that the process of adjudication could not be used because it was primarily used for minor disputes arising during the course of the contract.

HHJ Wilcox QC held that there was no limit on the time when a dispute could be referred to adjudication. Further, and in reliance upon Heyman v Darwins Limited [1942] AC 356, [1942] 1 ALL ER 337 he held that adjudication, by analogy to arbitration, survived determination of the contract. Further, the defendant’s participation in the adjudication process meant that they had waived any jurisdictional challenges that should have been brought at the commencement of the adjudication. In this regard, he stated, at paragraph 16:

“they could have challenged the Adjudicator as they threatened to do so, or sought an immediate ruling by the Adjudicator as to his jurisdiction which could have been the subject of an immediate challenge. They did not do so.”

The defendant invited the court to open up review and examine the Adjudicator’s decision. In this respect HHJ Wilcox QC stated that:

“the correctness of his decision is not a matter that falls to be considered at this time by this court which is considering the limited issue arising out of the claimant’s claim, namely the enforceability of the Adjudicator’s decision.”

In conclusion, he held that the claimant had discharged the burden of showing that the defendant had no real prospect of successfully defending the claim and gave judgement for the claimant for the full amount of the Adjudicator’s decision. He refused to order a stay of execution as this would undermine the purpose of the temporary finality of an Adjudicator’s decision.