3) Jurisdiction overlapping with substantive issues: Ex Novo Ltd v MPS Housing Ltd [2020] EWHC 3804 (TCC) (17 December 2020) HHJ Eyre QC I t is well established that parties to construction contracts may, in each adjudication, refer only a single dispute arising under their contract to the adjudicator. This means that an adjudicator does not, in the absence of the agreement of the parties, have jurisdiction to decide multiple disputes, arising under multiple contracts, within one adjudication. It is also "broadly the uncontroversial view that an adjudicator does not have jurisdiction to decide his or her own jurisdiction unless the parties have effectively agreed or permitted him or her to do so"[10]. In this case, the court considered and reviewed the law on an exception to the usual position on the power of an adjudicator to rule on his/her own jurisdiction, the position being, that an adjudicator may determine his/her jurisdiction, if there is an ‘overlap’ between the substantive dispute and the matter of jurisdiction. This could occur for example where the parties dispute whether works were carried out under a single contract (under which the adjudicator was appointed), or multiple and/or other contracts. In such cases, an allegation that there are multiple contracts could give rise to both a substantive defence that the adjudicator must determine, and also a jurisdictional challenge. The adjudicator’s decision on the substantive defence would necessarily involve a decision on jurisdiction.
The defendant, MPS, engaged the claimant, ENL, to carry out renovation works at local authority properties in Wrexham. ENL initially carried out works pursuant to a contract purchase order issued in November 2018. The works continued throughout 2019, whilst the parties engaged in discussions regarding the replacement of their original contractual arrangements with a framework agreement, and with MPS issuing further purchase orders to ENL. A dispute arose regarding the sums due to ENL for their works which ENL referred to adjudication. ENL contended that its works were carried out under one contract, made in November 2018, which had later been varied. MPS argued that the parties had concluded at least four separate contracts (including the November 2018 contract). The adjudicator found that all the works were carried out under the November 2018 contract and awarded ENL payment of just over £300,000 and ENL now applied to enforce that decision. The issues If an adjudicator is properly appointed under a contract about which there is no dispute, he/she may be entitled to decide its own jurisdiction, if the jurisdictional issues ‘overlap’ with or are ‘coincidentally’ part of the substantive dispute. The adjudicator’s decision will be part of the matters determined within his/her jurisdiction, and therefore binding even if the determination is wrong in fact or law. However, the court will ‘look closely’ to decide whether it was necessary for the adjudicator to decide the point that coincided with the jurisdictional issue, in order to resolve the substantive dispute.
[10] Per Akenhead J quoting fromthe judgment of Simon Brown LJ in Thomas-Fredric's (Construction) Ltd v KeithWilson [2004] BLR 23
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