This was an application by IDE, the claimant, to enforce the decision of an adjudicator 18th November 2003. The adjudicator found in favour of the claimant in the sum of £161,229.61 including VAT. The application was made under CPR Part 8. The correctness of the figures was not disputed, but the defendant relied on two jurisdictional challenges. First, that the adjudicator had not been duly appointed, and second that two disputes has been referred within the notice.

In respect of the first ground, the contract provided that disputes would be referred in accordance with the Act and the Scheme to a named adjudicator. In the event that he could not act then a nominating body was to nominate an adjudicator by default.

A PA working for a chartered quantity surveyor acting for the claimant telephoned the named adjudicator in early September 2003 to see if he would be able to act. He replied that he would not be able to accept the appointment due to commitments overseas. He would have been available on 2nd November onward.

The Notice was received by the defendant on 29th September 2003. At the same time a request was made to the Chartered Institute of Arbitrators (the nominating body) to appoint an adjudicator. The defendant then proposed two alternative names asking the referring party to agree one, but the claimant preferred to rely on the nominating body to appoint. The defendant reserved its position, stating that the conditions required any dispute to be referred to the named adjudicator, and they had not received a copy of an application to him, nor any confirmation that he had been contacted or was unable or unwilling to act. Initially they participated on a without prejudice basis, but eventually withdrew completely.

Section 2(1) of the Scheme states:

following the giving of a Notice of Adjudication and subject to any agreement between the parties to the dispute as to who shall act as adjudicator -

a) The referring party shall request the person (if any) specified in the contracts to act as adjudicator”.

That person is then to indicate whether he or she is willing to act within 2 days of receiving the request (section 2 (2)). The request must included a copy of the Notice of Adjudication (section 3). If the adjudicator is unable or unwilling to act then the referring party may request the nominating body to appoint an adjudicator (section 6).

HHJ Havery QC held that it was clear that the Notice of Adjudication was to come first. The referring party was then to request the named person to act as adjudicator. The request was to be in writing and should be accompanied by a copy of the Notice of Adjudication. That person then had 2 days within which to indicate whether he or she was willing to act. No request was made under paragraph 2(8) of the Scheme, and therefore the adjudicator nominated by the nominating body did not have any jurisdiction. The defendant had not submitted to the jurisdiction of the nominated adjudicator, because it had clearly reserved its position. It was important to follow the procedures, because:

“…it would be open to an intending claimant who did not want the specified person to act as the adjudicator to ascertain, without the knowledge of the other party, when the specified person would not be available, and to serve the notice of adjudication at that time.” (paragraph 10)

It was therefore not necessary to consider the second ground, and the claim was dismissed.

Many thanks to Stuart Holland for providing a copy of the judgment.