It strikes me that there are a number of factual scenarios that commonly lead to jurisdictional challenges when disputes come to adjudication. One example is where the contract concerns a residential occupier. There will often be jurisdictional challenges even if the contract in question expressly provides for adjudication, as we can see from the mountain of case law on the topic. Another obvious example is where part or all of the contract is said to comprise excluded construction operations under section 105(2) of the Construction Act 1996. Millions of pounds in legal costs have been wasted over the years arguing about these exclusions and, as I have said on a number of occasions (most recently in March 2020), it is high time we put these exclusions into Room 101.
A less obvious example is where parties enter into multiple agreements concerning the same project. We’ve seen a number of cases over the years where the question has arisen as to whether they were variations to a single contract, or multiple contracts, the issue being that an adjudicator cannot decide disputes under different contracts in the same adjudication. Indeed, I blogged on just such a case earlier this year.
The case I want to discuss this week, Delta Fabrications & Glazing Ltd v Watkin Jones & Son Ltd, also involves multiple contracts but comes with a twist in that the parties agreed they had entered into two separate sub-contracts. So how, I hear you saying to yourselves, did the referring party consider that the adjudicator had jurisdiction to decide the dispute? Continue reading