The parties’ NEC subcontract provided for a dispute to be referred to adjudication only after attempts had been made for at least four weeks to resolve the dispute under a “Notice of Dissatisfaction”, and for the Adjudicator to be nominated by John Mowlem from its list of approved Adjudicators from Atkin Chambers. A dispute arose and Hydra-Tight first requested RICS appoint an Adjudicator and then the ICE. John Mowlem objected and brought an application arguing that the subcontract procedure had not been followed.

The Judge found that John Mowlem had the right to include a provision in its standard form of contract for the appointment of an Adjudicator from their chosen list. This was not bias, as Hydra-Tight would have a chance to object to any appointment on the basis of any conflict of interest. The list was identifiable as it could easily be construed as members of Atkin Chambers.

The Judge noted that the Notice of Dissatisfaction provision was contrary to s108 requirement for adjudication to be referred “at any time”. This meant the subcontract did not provide a timetable for securing of the appointment of an Adjudicator and referral of a dispute to him within 7 days. As such, as the contractual adjudication provisions were non-compliant with the Act, Part 1 of the Scheme in its entirely applied. A declaration was granted that the Adjudicator did not have jurisdiction as well as an injunction restraining Hydra-Tight for taking any step in the adjudication or to seek to enforce or implement any decision of the Adjudicator without Mowlem’s agreement.