The title sounds like an exam question, but is there any truth in the statement?
Since 2008 and the decision in Cantillon v Urvasco, the TCC has been considering the knotty problem of what to do with an adjudicator’s decision when part of the decision is unenforceable for some reason or other. Long gone are the days when it is a simple “all or nothing” on enforcement.
Severability of adjudicators’ decisions
While few will forget Edwards-Stuart J’s decision in Geoffrey Osborne to sever and enforce part of the adjudicator’s decision, so far at least, that judgment stands alone. More recently, the TCC has looked at the issue, but in the context of “one dispute”, it has not taken that step. For example, In Pilon v Breyer, Coulson J rejected the contractor’s argument that he should sever those parts of the decision that were tainted by the adjudicator’s failure to consider parts of the employer’s defence. Equally, in Cleveland Bridge v Whessoe, Ramsey J held that the parts of the decision made within jurisdiction could not be severed from those that were made without jurisdiction.
Despite the guidelines on when a decision may be severed (laid down by Akenhead J in Cantillon v Urvasco), all of these judicial musings do nothing to make life easier for adjudicators and the parties.
Request a split decision
One answer may be for the parties to invite the adjudicator to consider the dispute on an issue-by-issue basis. Alternatively, when there are jurisdictional issues, where possible, ask the adjudicator to deal with those parts of the dispute that are subject to the challenge separately in the decision.
Although this happened in Cleveland Bridge, and the employer did request the adjudicator to produce a split decision, the adjudicator declined (she felt she had jurisdiction to deal with the whole, so there was no need to split her decision). Had she acceded to the employer’s request, it is possible that Ramsey J would have severed her decision and enforced the part that fell within section 105(1) of the Construction Act 1996. However, we will never know.
What is happening in practice?
I am receiving more requests from parties to split my decision on the substantive issues (and the associated costs of dealing with those issues). This is especially so where the responding party raises jurisdictional challenges. I suspect this not only reflects the trend in recent TCC judgments, but is in anticipation of a challenge to my decision in enforcement proceedings. After all, if I write a decision that the court can easily split, the more likely it is that part (if not all) of that decision will be enforced.