Adjudication is designed to deliver “rough” justice, quickly. That speed often leads to losing parties mounting jurisdictional challenges or submitting natural justice objections. In practice, such challenges and objections are rarely successful, but when they are, they can be fatal to enforcement.
Jurisdiction is the adjudicator’s authority to decide the dispute. If an adjudicator acts outside their authority, their decision is void and cannot be enforced in court. Consequently, it is imperative that jurisdiction is considered at the outset of any adjudication and monitored until a final decision is made.
The courts have been consistent in their approach. Adjudicators’ decisions will usually be enforced, even if they contain mistakes. As Mr Justice Jackson explained in Carillion Construction v Devonport Royal Dockyard Ltd [2005] BLR 310:
This position was more recently reaffirmed by Mr Justice Constable in Home Group Limited v MPS Housing Limited [2023] EWHC 1926 (KB).
A proper understanding of the distinction between errors within jurisdiction and errors outside jurisdiction is crucial to risk management.
Errors within jurisdiction include mistakes of fact, law or procedure. These errors will rarely justify failure to comply with an adjudicator’s decision or prevent enforcement.
Errors outside jurisdiction include issues the adjudicator has no authority to decide, such as:
These errors will usually invalidate all or part of an adjudicator’s decision and prevent enforcement.
Challenging enforcement can seem attractive to the losing party, but most jurisdictional and natural justice objections fail.
If a sustainable jurisdictional challenge or natural justice objection is identified, it must be raised quickly to ensure that it is preserved. If a party continues to participate fully in an adjudication without raising a jurisdictional challenge or natural justice objection, they may be treated as having accepted the adjudicator’s jurisdiction. In those circumstances, the party will be deemed to have waived their right(s) to raise jurisdictional objections and will be estopped from subsequently challenging the adjudicator’s jurisdiction.
Noting the tight 28-day timetable applicable to adjudications, specialist advice should be sought immediately.
Before resisting enforcement, parties should carefully weigh up
If you suspect that your organisation or you personally may be on the receiving end of an adjudication you should seek specialist advice as swiftly as possible.
Our team at Culbert Ellis is experienced in all aspects of construction disputes and has a successful track record in successfully representing referring and responding parties in adjudications.
We provide pragmatic, tailored advice to protect your interests and maximise outcomes.
If you would like advice on adjudication, jurisdictional challenges, or enforcement, please contact Paul O’Donnell at paul.odonnell@culbertellis.com or call 07521 417579.
