Case 2: Ex Novo Ltd v MPS Housing Ltd [2020] EWHC 3804 (TCC) (17 December 2020) HHJ Eyre QC
There may be an overlap between the two—such as where it was necessary to decide whether there was one contract which had been varied, or a series of contracts. In such a case, the adjudicator’s decision on the preliminary matter may be binding. But not always.
The determination was only made within jurisdiction (and therefore binding) if:
It is well established that:
(1) parties may, in each adjudication, and absent agreement, refer only a single dispute arising under their contract to the adjudicator. (2) it is "broadly uncontroversial” that an adjudicator does not have jurisdiction to decide his/her own jurisdiction unless the parties have effectively agreed or permitted it. There is an exception to the usual position on ruling on own jurisdiction: where there is an ‘overlap’ between the substantive dispute and the matter of jurisdiction and the former is integral to the latter. The question here was: was there 1 contract (later varied) or 4 separate contracts. Adjudicator found 1 contract awarded ENL £300,000. MPS argued adjudicator had no jurisdiction, on the basis that the reference to adjudication concerned multiple sums due and disputes under multiple contracts.
(a) it had to be made, not just as part of the process of conducting the adjudication, but as a ‘necessary element’ in deciding the substantive dispute, once any questions of jurisdiction were resolved.
(b) it was ‘integral’ to the substantive decision.
On the facts, it had not been necessary for the adjudicator to decide the ‘multiple contracts’ point, in order to determine the substantive dispute. The real issue between the parties on that dispute was whether there was a valid payless notice from MPS, and a potential valuation matter. NB MPS had no real prospect of demonstrating there were multiple contracts. The evidence pointed to a single contract, with call offs. Accordingly, the adjudicator had jurisdiction to decide the dispute, and his decision should be enforced.
HHJ Eyre distinguished
(i) issues that are ‘as a preliminary’ to resolving the substantive dispute such as a question of jurisdiction determinations about which were not binding; (ii) issues necessary to determine the substantive dispute which are binding, even if wrong in fact or law.
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