The appointment of the adjudicator was in the news earlier this year in Bovis Lend Lease v Cofely Engineering, when the court had to consider what the correct procedure for nominating an adjudicator was under the sub-contract. (Some parts of the sub-contract stated that an adjudicator should be nominated by the Royal Institution of Chartered Surveyors (RICS), whereas other parts named Rob Smith (or a colleague in certain circumstances), of Davis Langdon, as the adjudicator.)
In that case, the court decided that the sub-contract required an adjudicator to be nominated by the RICS. This meant that the fifth adjudicator had jurisdiction, whereas the named adjudicator did not have jurisdiction in the sixth adjudication.
I recently had an interesting jurisdiction issue to consider, which concerned named and nominated adjudicators. It related to the TeCSA adjudication rules (version 2.0) and my interpretation of clauses 4 and 5:
“4. Where the Parties have agreed upon the identity of an adjudicator who confirms his readiness and willingness to embark upon the Adjudication within 7 days of the notice requiring adjudication, then that person shall be the Adjudicator.
5. Where the Parties have not so agreed upon an adjudicator, or where such person has not so confirmed his willingness to act, then any Party shall apply to the Chairman of TeCSA for a nomination. The following procedure shall apply:
(i) The application shall be in writing…
(ii) The Chairman of TeCSA shall endeavour to secure the appointment of an Adjudicator…
(iii) Any person so appointed, and not any person named in the Contract whose readiness or willingness is in question, shall be the Adjudicator.”
I was appointed by the Chairman of TeCSA under clause 5, even though there was an adjudicator named in the contract. The responding party challenged my appointment. It argued that the referring party should have approached the adjudicator named in the contract.
The issue that I had to decide was whether I was validly appointed. If not, then I would lack jurisdiction and should resign. Because this was an adjudication based on the TeCSA rules, I was able to decide the issue of my own jurisdiction (rule 14), which is unusual. Often the responding party will ask for a non-binding decision on jurisdiction and then reserve its position so that it can raise the challenge again later, in enforcement proceedings, to resist enforcement. In this case, the parties would be bound by my decision on jurisdiction (although it is arguable that if I wasn’t properly appointed then I had no powers at all – which may well be a matter the courts have to decide in due course).
In deciding whether I had been validly appointed, I had to consider what the words “confirms his readiness and willingness to embark upon the adjudication” in clause 4 meant, in a situation where the referring party had not approached the named adjudicator but had, instead, gone directly to the nominating body named in clause 5. I also looked at the phrase “where such person has not so confirmed his willingness to act” in clause 5.
I concluded that I did have jurisdiction because clause 4 of the TeCSA rules says that the person agreed between the parties shall only be the adjudicator if he confirms his “readiness and willingness to embark upon the Adjudication within 7 days of the notice requiring adjudication”. As a matter of fact, the named adjudicator had not done so. While this was probably because he had not been approached and/or made aware of the notice requiring adjudication, as there was no express requirement to approach the adjudicator identified in the contract, I found that the referring party had followed the correct procedure. This is in contrast to the Scheme , where paragraph 2(1)(a) obliges the referring party to request the person specified in the contract to act as the adjudicator.
And my conclusion on all of this? It just goes to show that what would, perhaps, appear instinctively to be the position is not always consistent with what the position is, based on the words in the contract.
