i) A referring party is entitled to define the dispute to be referred to adjudication by its notice of adjudication. It may confine the dispute referred to specific parts of a wider dispute e.g. the valuation of particular elements of work forming part of an application for interim payment. ii) A responding party cannot widen the scope of the adjudication by adding further disputes except by consent of the other party. iii) A responding party was entitled to raise any defences it considered properly arguable to rebut the claim. In so doing it is not widening the scope of the adjudication; it is engaging with and responding to the issues within the scope of the adjudication. iv) Where the referring party sought a declaration as to the valuation of specific elements of the works, it was not open to the responding party to seek a declaration as to the valuation of other elements of the works. v) However, where the referring party sought payment in respect of specific elements of the works, the responding party was entitled to rely on all available defences, including the valuation of other elements of the works, to establish that the referring party was not entitled to the payment claimed. vi) It was a matter for the adjudicator to decide whether any defences put forward amounted to a valid defence to the claim in law and on the facts. vii) If the adjudicator asked the relevant question, it was irrelevant whether the answer arrived at was right or wrong. The decision would be enforced.
both under the contract and by way of adjudication). The values were to be assessed by reference to the position as at the date of Interim Application 27 so that and for the avoidance of doubt only, certain listed matters were said not to form part of the dispute referred to this adjudication and not included within the scope of this adjudication (the "Excluded Matters").
The Excluded matters were:
(1) Sudlows' entitlement or otherwise to further extensions of time for Section 1 or Section 2 of the Works. (2) The question of liability for defective work; and (3) The potential overloading of the roof. Sudlows submitted that whilst the notice of adjudication defined the scope of the dispute referred, GSEL was not entitled to restrict the scope of the adjudication and Sudlows was entitled to raise any defence open to it including it entitlement to further extensions of time and consequent loss and expense. When the adjudicator issued his decision, it was clear that he had accepted Global's argument, finding he did not have jurisdiction to deal with Sudlows' extensions of time and loss and expense claims. Justice O’ Farrell agreed with Sudlows. GSEL had misled the adjudicator and he had fallen into error in restricting his jurisdiction. Such a "plain and obvious" breach of natural justice rendered his decision unenforceable.
After reviewing the relevant authorities[17] Justice O’Farrell observed:
[17] [1] Most recently, in Bresco Electrical Services Ltd (in liquidation) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25, Lord Briggs JSC stated at [44]: "However narrowly the referring party chooses to confine the reference, a claim submitted to adjudication will nonetheless confer jurisdiction to determine everything which may be advanced against it by way of defence, and this will necessarily include every cross-claim which amounts to (or is pleaded as) a set-off."
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