on it. It was not uncommon for an adjudicator to decide on a figure that neither party had put forward. Masma had referred to the figure of £20,000 in correspondence. The adjudicator was not limited to awarding only the figure claimed in an invoice. That would stretch the concept of natural justice. An argument that no dispute had crystallised also failed. That left the question of the recovery of a small amount for fixed costs which is dealt with at section 3. 5. Jurisdiction-adjudicator did not fail to exhaust his jurisdiction or deal with more than one dispute Morgan Sindall Construction and Infrastructure Ltd v Westcrowns Contracting Services Ltd 10 This was a case which contained a number of broad challenges to the adjudicator’s decision. Lord Clark held that these criticisms were not well-founded. Morgan Sindall obtained an adjudicator’s decision in its favour of the payment of £430,654.44 plus VAT. Westcrowns sought to avoid payment on a variety of grounds: 1. The adjudicator acted outside his jurisdiction because he decided two disputes. The dispute referred was whether there was a Defect in the floor (from either of two possible causes), the Defect being described as “bubbling and blistering” and if so, who was responsible for it. A review of the pre-action correspondence and the adjudication documents, lead to the conclusion that this was the dispute that was referred to adjudication. Westcrowns nevertheless argued there was not one dispute but two because the claim concerned both “notified” and “non-notified” defects, different areas of the floor, and there were claims for damages for breach of contract and in the alternative damages at common law. Lord Clark concluded that the dispute that was referred to adjudication, referred to the whole floor, and a claim for damages for breach of contract on that basis and it would be artificial to characterise it as two disputes. 2. Second, did the adjudicator leave out of account a relevant consideration? It was said by Westcrowns that the adjudicator failed to consider important parts of its submissions and relevant materials, including not giving sufficient weight to “unchallenged” witness statement evidence and failing to take account of observations made on inspection and written submissions. It could not be said that the absence of separate consideration of three particular points in the adjudicator’s decision was material or caused substantial prejudice to the Defendant.
3. Third, did the adjudicator act in a way which was procedurally unfair? Held for the same reasons as in (2) above, the adjudicator did not act in a way which was procedurally unfair. 4. Fourth, did the adjudicator fail to exhaust his jurisdiction and to give reasons or intelligible reasons for his decision? It was suggested by Westcrowns that the adjudicator had failed to give any reasons for rejecting their submissions over the sum of £72,000 said to have been wrongly withheld. The adjudicator did not refer to this issue in his decision. The sum consisted of four components. The Court decided it was clear from other conclusions that the adjudicator did not consider the first component to have fallen due for payment. Components two, three and four were not within the adjudicator’s jurisdiction or were not sufficiently ventilated anyway. No proper case was made out. In reality all that was omitted from the decision was a comment that the adjudicator could not decide upon these issues. A failure to give effect to a deduction to a lesser sum of £983.06 was not material and caused no substantial prejudice. There was no failure to exhaust his jurisdiction or a failure to give reasons on that matter. Lord Clark also found that a reservation of jurisdictional rights made during the adjudication by Westcrowns (after the rejoinder was served) was different to the issue raised before the Court. As the point had not been raised in the adjudication, when it could have been, it could not now be raised before the Court. 6. Jurisdiction-excluded operation- reservation of rights Equitix ESI CHP (Wrexham) v Bester Generacion UK Ltd 11 There were two adjudications between the parties. The first concerned the validity of the Claimant employer’s termination of its contract with the Defendant contractor (and any entitlement to an extension of time) and the second adjudication, the basis/accuracy of the Claimant’s interim account. The bespoke contract was for the design and construction of the Wrexham Biomas Fired Energy Plant (“the Project”). Following termination the Claimant was at liberty to elect whether or not to proceed with the Project. The final accounting was to be by way of a Net Loss Statement, pending which the Claimant was entitled to payment by way of an Interim Account. Any dispute about the Interim Account was subject to adjudication which would be final and binding. The contract’s bespoke adjudication provisions did not comply with the Act and it was common ground that the Scheme applied. Both adjudications were conducted under the Scheme.
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