Adjudication - Scottish Construction Contracts - page 354

argued in defence of enforcement proceedings that the contract in question was not
a 'construction contract' within the meaning of the 1996 Act as it had either (1) been
entered into pre-1 May 1998 or (2) had never been entered into at all. Complicated
evidence had been led before the adjudicator as to what had and had not been agreed
between the parties. The adjudicator determined first that it was a construction con-
tract and then made a monetary award.
Mr Justice Dyson distinguished this case from Macob Civil Engineering Ltd on the
basis that a different test might require to be applied where the adjudicator purports
to decide a dispute not referred to him at all, that is when he was determining his own
jurisdiction. It was suggested that such an approach would enable every responding
party to raise spurious jurisdictional issues, but the judge considered these fears were
exaggerated. In this case it was found that there was sufficient doubt as to whether
there had been offer and acceptance and therefore a contract. If there was no contract,
the adjudicator could not have jurisdiction. The judge declined to award summary
judgment to enforce the decision.
The question whether the adjudicator has the necessary jurisdiction is not itself a
dispute arising under a construction contract. An adjudicator has no power to decide
his own jurisdiction.
The abolition by the 2009 Act of the requirement for a construction contract to be
in or evidenced by writing, as discussed in Section 1.2.2, is of particular importance to
adjudication. his change is partly designed to prevent jurisdictional objections being
made unnecessarily to impede adjudications. There is a risk, however, that consider-
able time and expense may now be spent ascertaining the terms of any oral or partly
oral contract and what exactly is in dispute as a matter of contract.
Matter not referred to adjudicator/failure to exhaust referral
An adjudicator should exercise what jurisdiction he has and reach a decision on any
matter properly referred to him, see Ballast plc v. he Burrell Company (Construction
Management) Ltd (2003). An adjudicator cannot decide a matter which has not been
referred to him. He must decide all the matters referred to him, see S L Timber Systems
Ltd v. Carillion Construction Ltd (2002).
In FWCookLtd v. Shimizu (UK) Ltd (2000), four items in the final account were
referredtoadjudication,butnorequestforpaymentwasactuallysetoutintheReferral
Notice. he adjudicator attempted to assess a monetary value on each of the four items
and Cook tried to enforce the decision. The judge took a different view and said that
Cook had sought to achieve a decision on the specific items with the hope that other
itemsintheinalaccountmightbenegotiated.headjudicatorhadnotmadeany
decision on payment and would have exceeded his jurisdiction if he had done so.
Summary judgment was refused.
An adjudicator must also not underestimate his remit. In the case of RBG Lim-
ited v .SGLCarbonFibersLimited (2010), an action for enforcement was successfully
defended on the basis that the adjudicator had failed to exhaust his jurisdiction. The
Notice of Adjudication referred a dispute regarding the payment of sums set out in
various invoices, plus interest. SGL argued that the adjudicator required to consider