Did the adjudicator decide more than one dispute and had a subcontract ever come into existence? These linked arguments were dealt with as one. BBGL had argued that as the Referral proposed two different dates on which the subcontract came into existence, the adjudicator was being asked to decide two different disputes. The court found that this mere lack of precision did not give rise to a jurisdictional challenge. The adjudicator was in any case entitled to determine which of several contacts might give rise to the claim, if that was necessary to a decision on the merits of the dispute[10] always provided that he was appointed under an ‘initial concluded contract about which there was no dispute”[11]. The question remained whether there was a real prospect at trial of BBGL showing there was no concluded contract. The court found on the evidence that BBGL did have a real prospect of showing there was no concluded contract by the 23 February 2017, being the date on which the adjudicator had found a subcontract to have been concluded.
The court felt that omission amounted to a material breach.
Delay in bringing the enforcement proceedings.
Had the decision been enforceable, the alleged delay in bringing the enforcement proceedings in court would not have prevented enforcement. There was no obligation on a successful referring party to bring enforcement proceedings within any particular time before the expiry of the limitation period (normally 6 years from the date of the decision).
Nor had BBGL shown any legal or procedural basis for its contention.
Thus there was no subcontract under which the adjudicator had been properly appointed.
Was there a material breach of natural justice?
To be ‘material’ the breach must have been related to an issue of importance to the decision[12]. The adjudicator had failed to advise the parties of his ‘line of thinking’ about the formation of the subcontract, namely that the subcontract had been concluded on 23 February 2017, which was not a date for which either had contended; nor had he explained what terms he considered had been agreed on that date.
[10] Air Design v Deerglen [2008] EWHC 3047 (TCC) [11] Viridis v Mulalley [2014] EWHC 268 (TCC) [12] Cantillon v Urvesco [2008] EWHC 282 (TCC)
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