(b) In certain adjudications, matters of substance and jurisdiction might have ‘overlapped’. Thus in Air Design v Deerglen , Mr Justice Akenhead found that, as part of determining the substantive dispute referred to him, the adjudicator had been required to decide whether there had been variations to a single contract, or multiple contracts concluded between the parties. Because the question of whether there were multiple contracts formed part of the substantive dispute, the adjudicator was entitled to find that there had been one contract, pursuant to which he had been properly appointed—thus, the adjudicator had been entitled to determine his own jurisdiction, in that respect. In later cases, Akenhead J explained that Deerglen was simply authority for the point that, if an adjudicator had been properly appointed under a contract about which there was no dispute, he may have power to determine jurisdictional issues, if and to the extent that those issues were ‘coincidentally’ part of the substantive dispute. Reviewing these authorities, HH Judge Eyre distinguished between two kinds of issue that an adjudicator might need to determine: (i) issues that are ‘as a preliminary’ to resolving the substantive dispute. The question of whether the adjudicator had jurisdiction was such a matter and these determinations were not binding; (ii) issues that are necessary to determine the substantive dispute which are decisions the adjudicator is entitled to make within his/her jurisdiction and which are therefore binding, even if wrong in fact or law. There may be an overlap between the adjudicator’s preliminary and substantive
If the adjudicator could have determined the dispute without deciding that particular point, then the adjudicator’s finding on the point (and in turn, on jurisdiction) will not bind the parties, leaving them free to challenge the adjudicator’s jurisdiction on enforcement, in the usual way. MPS argued that the adjudicator had no jurisdiction to make his decision, on the basis that the reference to adjudication concerned multiple sums due and disputes under multiple contracts.
The key issues that arose in the enforcement proceedings were, therefore, whether:
(1) the adjudicator had jurisdiction. This turned on whether there was a single contract with multiple instructions for works, or multiple contracts (it being common ground that while the adjudicator had jurisdiction to determine multiple issues under one contract, he could not, without the parties’ agreement, determine disputes under multiple contracts), and (2) the adjudicator’s decision that there was a single contract was a decision that he had jurisdiction to make, so that, even if his decision was wrong in fact or law, that error would be no defence to the summary judgment application.
From the existing authorities the court drew the following propositions[11]:
(a) An adjudicator did not have jurisdiction to decide his/hers own jurisdiction, unless the parties agreed that he/she may do so. However, it might in sometimes be necessary to consider whether the adjudicator was entitled to determine his/her jurisdiction as part of the substantive dispute, rather than as a preliminary jurisdictional matter.
[11] Viridis UK v Mullaley and Company Ltd [2014] EWHC 268 (TCC) Air Design (Kent) Ltd v Deerglen (Jersey) Ltd [2008] EWHC 3047 (TCC); Camillin Denny Architects Ltd v Adelaide Jones & Co [2009] EWHC 2110 (TCC); Supablast (Nationwide) Ltd v Story Rail Ltd [2010] EWHC 56 (TCC)
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