Adjudication - Scottish Construction Contracts - page 353

contract was not 1996 Act compliant. He found that the Scheme provisions on
payment applied. It was also argued that as the arbitration clause included referral of
disputes regarding an adjudicator's decision, enforcement of the adjudicator's award
should be postponed pending the outcome of the arbitration.
MrJusticeDysonrejectedbothargumentsandheldthatdespitetheattack,'anadju-
dicator's decision which appears on the face of it to have been properly issued will be
binding and enforceable in the court whether or not the merits or the validity of the
decision are challenged'. To adopt any other approach would be 'to drive a coach and
horses through the Scheme'.
Matters have progressed significantly since Mr Justice Dyson wrote the words
quotedaboveandtheymustnowbetreatedwithcare.hecourtshavesincemadeit
clear that they will uphold proper jurisdictional challenges. Accordingly, a decision
which is not valid because of lack of jurisdiction or breach of the rules of natural
justice will not be enforced. From a practical perspective, any party wishing to object
to the jurisdiction of an adjudicator should give consideration to both the timing and
ground, or grounds, of their objection. Raising no objection and then participating
in the adjudication can confer jurisdiction and may result in the waiver of any right
to object on jurisdictional grounds. See Brims Construction Ltd v .AZMDevelopment
Ltd (2013) and Glendalough Associated SA v . Harris Calnan Construction Co. Ltd
(2013). Raising specific jurisdictional objections can have the effect of waiving all
other jurisdictional grounds available, but not specified, during the adjudication,
see Allied P&L Limited v .Paradigm (2009). On the other hand, making a general
jurisdictional objection, while it may be valid, is not without risk - much may come
down to the exact wording of the objection, see GPS Marine Contractors Ltd v .
Ringway Infrastructure Services Ltd (2010). It is, of course, open to parties to assert
lack of jurisdiction and thereafter to take no part in adjudication proceedings, but
this can result in other substantial risks.
It should also be noted that, though a successful jurisdictional challenge may result
in the unenforceability of an adjudicator's decision, where the objecting party has
participated in the adjudication following objection, they may still be liable for the
fees and expenses of the adjudicator, notwithstanding the lack of an express contract
between the adjudicator and the objecting party, see Christopher Michael Linnett v .
Halliwells LLP (2009) and Section 16.8.
In the event of a challenge to jurisdiction, as a matter of practice the appropriate
approachisfortheadjudicatortoenquireintohisjurisdictionandinsofarasheindsit
tobethecasethathehasjurisdiction,heshouldcontinuewiththeadjudicationunless
and until the court orders otherwise. In the event that the adjudicator considers that
he does not have jurisdiction, he should resign. See also paragraph 38(3) of Justice
Ramsey's decision in HG Construction Ltd v .AshwellHomes(EastAnglia)Ltd (2007)
in this regard.
Examples of commonly made jurisdictional challenges are set out below.
No construction contract between the parties
Chapter 1 considered the definition of 'construction contract' for the purposes of the
1996 Act. In Project Consultancy Group v. Trustees of the Gray Trust (1999) it was