The judgment in WW Gear v McGee Group (and Jon’s subsequent post on it) got me thinking beyond using CPR Part 8 in adjudication and more generally about the meaning of declaratory relief. In my experience, most adjudications are about money allegedly due from one party to the other and so I wondered how often a party seeks declarations from the adjudicator.
Part 8 describes itself as an “alternative procedure” for situations when the court’s decision is required “on a question which is unlikely to involve a substantial dispute of fact”. The TCC guide refers to Part 8 in the context of interpreting a statute or construing a contract. It suggests that as the “relevant primary facts are often not in dispute”, such claims can generally be dealt with by “written evidence and oral submissions”. It then goes on (in section 9) to discuss declaratory relief in the context of adjudication business, suggesting it is appropriate to deal with issues such as:
- The adjudicator’s jurisdiction.
- Whether there was a written contract (pre-Construction Act 1996 amendments).
- Whether there is a “construction contract“.
- The scope of the adjudication and whether the dispute had crystallised at the time of the referral.
Declaratory relief in adjudication
There is no reason why an adjudicator cannot be asked to determine issues such as the meaning of a contract term, or even something more complex, such as when practical completion was actually achieved. However, many of the issues identified in section 9 of the TCC Guide go to the adjudicator’s jurisdiction and we all know that he cannot deal with that question and give a binding decision, unless both parties agree that he can. In those circumstances, it may be sensible for the court to deal with the question.
I think there are similarities between declaratory relief applications and adjudication. After all, adjudicators often deal with quite complex issues entirely on written evidence alone. Not every adjudication merits a hearing with the parties, let alone oral evidence from witnesses or experts. Some may not consider that the adjudicator is granting a party declaratory relief, and it certainly isn’t called that, but parallels can be drawn.
Back to WW Gear
In WW Gear, McGee sought a declaration about the meaning of a contractual provision. It’s easy to see from the judgment that if the court had granted the relief it sought, it may have entirely undermined WW Gear’s claim. It is arguable that McGee could have asked the adjudicator the same question, to be dealt with like a preliminary issue. However, that may not have been acceptable to WW Gear either. As Jon speculated, it is also understandable why WW Gear may not have agreed to the adjudication being stayed while the court considered the issue.