I welcome the guidance note. It is an interesting and helpful document, which highlights that ensuring “an adjudicator has the jurisdiction to decide the dispute referred to him is of utmost importance to the adjudication process”. Given the number of reported decisions on jurisdiction over the years, I doubt many would disagree with this opening sentiment. While the intended purpose of the note is “…to provide practical guidance to adjudicators…”, it will undoubtedly also be of assistance to party representatives, both before, during and after adjudications.
It’s freely available
Previously, the only other publicly available free guidance was published by the Construction Umbrella Bodies Adjudication Task Group (CUBATG) but that is now out of date and doesn’t go into the same amount of detail concerning jurisdiction.
It is concise enough to be read and easily absorbed, but still manages to cover the essential points, drawing on a number of sources (case law, Coulson on Construction Adjudication, Second edition, Oxford University Press and a number of PLC Construction adjudication practice notes).
Contracts in writing bit will need to be amended
Although the note will need to be updated to reflect the amendments to the Construction Act 1996 due to come in on 1 October 2011 (or 1 November 2011 in Scotland), that should simply involve making a note that the section concerning contracts in writing only applies to contracts dated before the changes take effect.
I’m glad that they decided to publish the note now rather than wait (they could have been waiting a long time after all!).
On the question of threshold jurisdiction, the note recommends that adjudicators ask themselves “Do I have jurisdiction” when deciding whether to accept an appointment, and then lists 14 questions that adjudicators should ask themselves.
While I agree that adjudicators should ask themselves “Do I have jurisdiction”, it is rarely going to be possible for an adjudicator to reach a conclusive view on this when deciding whether to take an appointment. This is because all the adjudicator is likely to have in his possession when deciding whether to accept an appointment is the Notice of Adjudication. The Notice is likely to enable the adjudicator to answer the first question posed, “Is there a conflict of interest preventing the adjudicator from acting?”, but it is unlikely to contain sufficient information to enable the adjudicator to conclusively answer the remaining questions.
Would it have been better to state that these are the questions adjudicators should ask themselves after being appointed? Even if the answer is yes, I would still question the extent to which adjudicators should religiously go through the 14 questions.
I agree that adjudicators should think about these questions as they review the submissions, but absent a jurisdictional challenge from the responding party, would the parties really appreciate the adjudicator taking time to undertake a detailed analysis of the submissions to decide matters like whether there is a contract, whether a dispute had crystallised or there is more than one dispute? For example, who would pay for this?
Have I been appointed correctly?
One question in the note that I think all adjudicators should address immediately on receiving the Referral Notice is whether they have been appointed in accordance with the contract and/or the Scheme for Construction Contracts 1998. In my experience it is surprising how many parties don’t follow the procedure set out in the contract. This normally only takes a couple of minutes and can save the parties considerable time and money if it is raised at the outset of an adjudication.
I like the practical guidance in the “Maintaining Jurisdiction” section, in particular the reference to the fact that the referring party is not limited to arguments, contentions and evidence put forward by it before disputes crystallised (Cantillon Ltd v Urvasco Ltd  EWHC 282). In my experience, responding parties don’t always appreciate this.
I have also seen it raised in threshold jurisdictional challenges, when arguing that there is no crystallised dispute.
I also really like the practical guidance under the heading of “Natural Justice”, and the practical pointers on how adjudicators can avoid some of the potential pitfalls. It’s very useful reading for adjudicators and parties alike!
To conclude – one suggestion
Finally, one suggestion. The note states that if the adjudicator concludes that a jurisdictional challenge is well founded “he must decline to act”. However, before doing so the adjudicator might want to ask the parties to liaise in relation to the way forward. It may be that the responding party is simply after more time and is prepared to waive a valid “no dispute” challenge subject to it being given more time.