The Enforcement Application Here there were two core jurisdictional objections to enforcement: i) The adjudicator had no power to act at all because the referral was out of time (the “Referral Obligation”); and ii) The adjudicator had, in any event, no jurisdiction to make a positive award in favour of Flexidig in the sense of deciding that £223,000 should be paid, once he had found there was a valid pay less notice (“the Positive Award Objection”). The “Referral Obligation” M&M said the true date of the notice of adjudication was the 20th because that was when it was sent out. As it was not disputed that the adjudicator received the reference on 29 November it was outside the 7 days for referral and out of time. The notice was received by M&M on 22 November. The court decided having regard to the provisions of the subcontract that the effective date of the notice was the date of actual receipt by M&M so that the subsequent referral to the adjudicator on 29 November was in time. This was in accordance with authority and accorded with section 108(2) of the Act. The Positive Award Objection M&M contended that it was impossible to understand what the adjudicator had been doing, that even if it could be understood, he had no jurisdiction to do what he did and that what he had done was a breach of natural justice. The court held that it was “very clear from the award what the adjudicator was doing”. Finding the pay less notice was valid, he had the power under section 111(8) of the Act to decide what the sum was that should be withheld.
This provided that the adjudicator can decide that more than the sum specified in the pay less notice (which here was zero) should be paid. Further, as the adjudicator later on confirmed, this was not a valuation exercise of the defects claim. It was a decision as to what amount of the AFP claimed could be withheld. The reasoning was understandable and explicable. The court observed there was a wealth of case law to help to decide if an adjudicator’s decision was part of the dispute and whether by reference to principles of natural justice, he should have done so. It was necessary only to refer to the judgment of Fraser J in Aecom Design Build Ltd v Staptina Engineering Services Ltd[10] where he said that so far as the jurisdiction side was concerned that the court: "...should not adopt an overly legalistic analysis of what the dispute between the parties is. The ambit of the reference to adjudication can also, unavoidably, be widened by the nature of the defence or defences advanced by the responding party.” Here the notice of adjudication did actually refer to awarding such other sum as the adjudicator finds due. It was true that this was in the context of a claim for damages for breach of contract but one needed to read that realistically: it was a claim in debt. The only question was whether all or some of it was owing and whether M&M could set off any amount based on its defects claim. The court concluded that the adjudicator did have jurisdiction to go on to make a positive award for the following reasons:
[10] [2017] EWHC 723
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