Over the last couple of years, a number of adjudication cases have looked at whether a party seeking to enforce an adjudicator’s decision could argue something different in court to the case it presented to the adjudicator. While some call it “approbating and reprobating“, I prefer and can understand the term “blowing hot and cold”.
HHJ Havery QC said in Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] EWHC 1994 (TCC) that you cannot do it. Somerfield recently ran the argument before Akenhead J in Nickleby FM Ltd v Somerfield Stores Ltd.
Nickleby referred a dispute to adjudication. Somerfield contested the adjudicator’s jurisdiction, arguing that the disputed sums did not arise under a written construction contract. The adjudicator decided, in the non-binding way that adjudicators decide such things, that he did have jurisdiction. He also decided that monies were due to Nickleby. Somerfield refused to pay up and Nickleby sought to enforce the adjudicator’s decision.
In the enforcement proceedings before the court, emails were disclosed (which had been previously overlooked by both parties) clearly evidencing that there was a written construction contract for the purposes of the Construction Act 1996.
Nickleby sought to rely on the emails. Somerfield got itself into a right twist about Nickleby’s new argument. “No”, said Somerfield, “you can’t play the Artful Dodger in this court. You made your election during the adjudication and you cannot switch horses now”. In doing so, Somerfield relied on Redworth.
A tale of two cities?
Akenhead J expressed “some disagreement” with Redworth. He said that when it came to jurisdiction, what mattered was not the non-binding decision of the adjudicator, but the binding decision of the court.
Akenhead J did not believe that the principle of election applied in this type of case. While not saying that Redworth was wrongly decided, Akenhead J thought it was important to see whether the claimant was in fact telling “a tale of two cities”, one before the adjudicator and one before the court or whether, in reality, the case being put was not materially different.
Further, Akenhead J thought it relevant to consider whether, if the correct information had been put before the adjudicator, the adjudicator would have reached the same decision as he did in the adjudication.
Finally, the question of whether the adjudicator did in fact have jurisdiction was also relevant. Akenhead J thought that if the adjudicator did have jurisdiction to decide the dispute referred to him and if he would have inevitably concluded that he did have jurisdiction if he had been provided with the full information, Akenhead J could not see why the decision should not be enforced.
It was “much ado about nothing”
Akenhead J considered Somerfield’s position to be totally unrealistic, given that it now accepted, on the basis of the emails subsequently disclosed, that there was a construction contract in writing.
While Akenhead J considered that Somerfield’s case involved “much ado about nothing”, I think it would have been more fitting, in all the circumstances, if he had simply concluded that Somerfield should stop being such a “Scrooge” and pay Nickleby the monies which the adjudicator had decided on the papers before him were due.
In closing, it may be worth noting that Akenhead J did not compare Somerfield to Uriah Heep, for he did not consider that it had put forward its case as to the lack of a written construction contract in bad faith.
(With thanks to those with far more literary skill than me, for without their help, I would not have stood a Dickens of a chance of writing this blog!)
