The contract between the parties did not incorporate an adjudication provision and was based on the ICE 6th edition standard form. However, following substantial completion, two adjudications took place based on the implied adjudication terms. Gosport then referred the dispute to arbitration. Mackley sought a declaration from the Court that this reference was invalid.

The Judge considered that the reference was invalid as the decision of an Engineer was a condition precedent to the right to refer a dispute to arbitration. Arbitration was only available to challenge an Adjudicator’s decision if the contract provided for it or there was an ad hoc arbitration agreement. In this case, Clause 66(6) of the ICE conditions applied even where the decision of an Adjudicator operating under the Scheme for Construction Contracts was challenged.