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Cite as: 201 Con LR 112, [2022] EWHC 155 (TCC)

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		Neutral Citation Number: [2022] EWHC 155 (TCC)
		Claim No: HT-2021-000378

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)

Royal Courts of Justice,
Rolls Building
Fetter Lane, London, EC4A 1NL

27/01/2022

B e f o r e :

THE HONOURABLE MR JUSTICE MORRIS
____________________

Between:

	JOHN GRAHAM CONSTRUCTION LIMITED	Claimant
	- and -
	TECNICAS REUNIDAS UK LIMITED	Defendant

____________________

Neil Dowers (instructed by Carson McDowell LLP) for the Claimant
Andrew Rigney QC and Carlo Taczaski (instructed by Stephenson Harwood LLP) for the Defendant
Hearing dates: 6 December 2021
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Mr Justice Morris :

Introduction

This is an application by John Graham Construction Limited ("the Claimant" (or "JGCL")) for summary judgment to enforce the decision of Mr Christopher Ennis ("the Adjudicator") dated 16 April 2021 (and corrected on 20 April 2021) ("the Decision" or "Adjudication 4"). By Adjudication 4, the Adjudicator ordered Tecnicas Reunidas UK Limited ("the Defendant" (or "TR" or "TRL")) to pay sums. The Defendant has paid part of those sums. However it has not paid fully the part of the Adjudication 4 relating to a disputed contra charge in the sum of £355,724.95. The contra charge was in respect of "provisional costs incurred appointing another subcontractors [sic] to carry out Graham's abandoned works" ("the Contra Charge"). The total sum now outstanding and claimed by the Claimant is £346,101.18 (which includes interest up to the date of the hearing).

The Claimant was employed by the Defendant, pursuant to a sub-contract ("the Subcontract"), as a subcontractor in respect of the construction of the Tees Renewable Energy Plant Biomass Power Station. There have been a number of disputes between the parties, resulting in four adjudications and two arbitrations. The first arbitration ("Arbitration 1") concluded in early 2021 and, by two partial awards (together "Award 1") made a final determination of matters which were referred to the arbitration tribunal. The second arbitration is continuing. As will be explained, Award 1 overturned the decision of the adjudicator in the first adjudication ("Adjudication 1").

The Defendant has not paid the Contra Charge because it contends that it is a severable and distinct part of Adjudication 4 and because, by reaching the decision that that sum was payable by the Defendant, the Adjudicator exceeded his jurisdiction. The Adjudicator wrongly decided that the decision in Adjudication 1, despite being overturned by Award 1, continued to have effect and "insulated the Claimant from liability for breach of contract". In so doing, the Adjudicator exceeded his jurisdiction.

In response, the Claimant contends that the Defendant participated in Adjudication 4 without reserving its position and has waived its right to raise a jurisdictional challenge; and in any event the Adjudicator did not exceed his jurisdiction.

The Factual Background

During the course of 2018 the Claimant and the Defendant were in dispute as to the scope of the works covered by the Subcontract. The Claimant considered that the subcontract works were limited to works necessary to achieve certain "Milestones" set out in the Subcontract and began to refuse to carry out works which it considered to extend beyond those Milestones and/or refused to carry them out for the rates and prices agreed in the Subcontract.

Adjudication 1

In February 2019 the Claimant referred the dispute as to scope of the works to adjudication in what was Adjudication 1. The adjudicator in Adjudication 1 agreed with the Claimant and on 5 March 2019 declared that the scope of the Subcontract works was limited as the Claimant alleged.

Arbitration Award 1

On 3 June 2019 the Defendant referred the dispute about the Claimant's scope of works to arbitration (Arbitration 1) for final resolution. The dispute was stated to be as follows:

"The dispute relates to the scope of work required to be carried out by Graham and as to whether, contractually or otherwise, that scope relates, or was or is to be treated as relating, to all civil works in connection with the project, save for certain identified exceptions, or is that described in the intermediate milestones ('the Milestones') set out or referred to in the Subcontract documentation. The pleadings identify issues relating to the construction and interpretation of the Subcontract and as to various estoppel and rectification matters."

The proceedings in Arbitration 1 were split. There was an initial hearing in April 2020 in relation to the parties' cases on contractual interpretation. This led to the First Partial Award dated 26 June 2020. There was a later hearing in December 2020 and a Second Partial Award dated 24 February 2021, which considered the parties' cases on estoppel and rectification. The outcome of Arbitration 1 was that the decision in Adjudication 1 was held to be wrong. In the First Partial Award, the tribunal held that the scope of the work contracted to be carried out by the Claimant "was defined by reference to the works set out in the Unit Price List [the BOQ]" and included all civil works in connection with the Project identified in the Unit Price List, including but not limited to the works identified in that List required to complete the foundation work broadly identified in Milestones 1-14. Thus the scope of the work was not limited as the Claimant alleged, but was wider, as the Defendant had contended.

Alternative contractors employed by the Defendant

By the time of Award 1, the Claimant had refused to undertake various items of works and the Defendant had arranged for alternative contractors to undertake various of those items. According to the Defendant, the Claimant's refusal to undertake those works had started prior to, and had continued after, Adjudication 1.

Dispute as to Interim Payment Application no 47

In the meantime in December 2020 a dispute between the parties crystallised as to the true value of the Claimant's interim payment application no 47. As part of its payment notice in response, the Defendant applied the Contra Charge. The Contra Charge represented the Defendant's provisionally quantified costs of others undertaking some of the works (falling within the scope as determined by Award 1) and represented claimed damages for breach of contract on the part of the Claimant in having failed and/or refused to carry out those works.

Adjudication 4

Reference and the Parties' contentions

On 5 March 2021 the Claimant gave notice of its intention to refer to adjudication a dispute "as to the correct value of Interim Payment Application Number 47", thereby commencing Adjudication 4. On the same date the Claimant set out the dispute as to the validity of the Contra Charge in the Notice of Adjudication, simply stating that "the Contra charge is invalid and that JGCL is entitled to be certified and paid the amount deduced [sic] by TR". In its Referral dated 12 March 2021, the Claimant addressed the Contra Charge, arguing that the Defendant had not demonstrated that it was entitled to levy the Contra Charge, as it had not demonstrated breach of contract, causation or loss and damage.

In its Response dated 26 March 2021, the Defendant addressed the Contra Charge, stating that the Claimant had not completed works within its scope as defined in Award 1, and set out the contractual basis on which it relied to justify the Contra Charge. At paragraph 125, the Defendant summarised the position as follows:

"Regrettably, … as the project progressed Graham did not accept that all of the work within [sic] was within its scope was in fact within its scope. It refused to carry out certain works, and when it left Site, it left a quantity of Works unfinished and abandoned. Those works had to be completed by others."

It is notable that, earlier at paragraphs 102 and 103 of the Response in relation to a different part of the claim, the Defendant put down a marker that if the Adjudicator considered himself bound by comments made by the adjudicator in Adjudication 2 and declined to consider the fresh evidence it put forward in this Adjudication, then that would be a breach of natural justice and that the Defendant would rely on such breach in any subsequent enforcement proceedings.

The Claimant's Reply

On 1 April 2021, the Claimant submitted its Reply. In relation to the Contra Charge, it put forward three arguments. Significantly, the second argument was that the Claimant was not in breach of contract because it was, at the time that it left site, following the temporarily binding decision in Adjudication 1. In a summary of its position, at paragraphs 14 to 18, the Claimant submitted that Adjudication 1 was a crucial element in the legal and factual matrix. It was binding until Award 1, by which time the Claimant had left the site by mutual agreement. Refusal was not a breach of contract because Adjudication 1 was binding on the parties. The fact that Award 1 decided the scope differently is irrelevant to the conduct of the parties as at the time Adjudication 1 was binding and there was no relevant breach of contract. The Claimant was obliged to follow Adjudication 1 from 5 March 2019 until Award 1, which itself was issued long after the Claimant had finished its works at the site.

The Claimant then addressed this second argument in detail at paragraphs 87 to 95, submitting in particular as follows:

"90. […] JGCL did not refuse to undertake any works until after Adjudicator's decision no 1 dated 5 March 2019 that decided that JGCL's scope of works was limited. JGCL was not in breach of contract as it was complying with the binding decision of the adjudicator, as it was obliged to do, pursuant to Section 108(3) of the Construction Act.

…

95. TR's argument as set out in paragraphs 128 to 131 is fundamentally flawed and TR cannot rely on the First or Second Partial Award to establish a breach of contract by JGCL. As noted above, JGCL was entitled to rely upon the Adjudicator's Decision No 1 dated 5 March 2019 as it was binding upon the Parties and JGCL was not in breach for refusing to undertake works that was outside the scope of JGCL's works as decided by the adjudicator. Similarly TR was entitled to instruct third parties to undertake works outside the scope decided by the adjudicator without being in breach of JGCL's contract by omitting work from JGCL's scope and instructing others to do this work. The fact that the arbitrators decided the point differently in June 2020 and February 2021 is irrelevant to the conduct of the Parties, as at the time the adjudicator's decision was binding and therefore no breach of contract on either side arose." (emphasis added)

The Defendant's Rejoinder

In its Rejoinder dated 8 April 2021 the Defendant addressed the Claimant's argument about Adjudication 1 and Award 1 (at paragraphs 62 to 68), contending that the Claimant's submission was wrong and that Award 1 established that the Claimant was in breach of contract when it refused to carry out works that were outside its scope as decided in Adjudication 1 but inside its scope as decided in Award 1. The Claimant's submission that it was entitled to rely on Adjudication 1 showed a complete failure to understand the statutory basis of adjudication under the 1996 Act and the status of an adjudication decision. The Claimant was entitled to rely upon Adjudication 1 until the true position was determined by arbitration, but it did so at its own risk, knowing that the situation could be turned on its head if the position was successfully challenged. In its Rejoinder, the Defendant did not reserve its position on jurisdiction or raise any argument that a finding along the lines of the Claimant's submissions would be outside the Adjudicator's jurisdiction.

Adjudication 4: The Decision

In the Decision dated 16 April 2021, the Adjudicator decided, inter alia, that the Defendant was not entitled to levy the Contra Charge. The issue of the Contra Charge is addressed at section 6 of the Decision. After summarising the parties' contentions in section 6.1, the Adjudicator continued as follows:

"6.2 Analysis

6.2.1 TRL's submission - in effect - invites me to decide whether the Conditions justify its levying of the contra charge claimed on the basis that JGC failed to perform its Subcontract Works and was thus in breach of contract. The contractual basis cited is concerned with the scope of the Subcontract Works. This was an issue which was the subject of the Adjudication before Mr Kilvington ("Adjudication 1") but which was reversed by the First Partial Award.

…

6.2.4 Certainly it seems that JGC was more than happy to quit Site. Whether or not it was "...undoubtedly the case that JGCL left Site with the agreement and blessing of TR", as JGC avers and TRL denies, it does appear to be correct, as JGC avers, that TRL did not write to JGC at the time asking it to stay at site to complete other works, nor did it subsequently write to JGC asking it to return to site to complete outstanding works. No doubt this was because the decision in Adjudication no. 1 rendered agreement and compliance with JGC to any such request highly unlikely.

6.2.5 Adjudication no. 1 is likely also to have been a material consideration in TRL's decision to descope JGC's Subcontract Works, and in particular the East Ramp works. This element would presumably still have been incomplete at the time general descoping took place, and JGC had claimed for an extension of time and substantial prolongation costs. Descoping will have cut short any further entitlement for JGC beyond 26 September 2019, the end date determined in the Adjudication before Mr Collie ("Adjudication no. 3"); the fact that he awarded an extension of time to JGC for this element would tend to vindicate TRL's decision to descope this element. TRL's more general decision to descope work found to be outwith JGC's Subcontract work scope in Adjudication no. 1, which was still effective at that time, and to award it to others, is therefore also likely to have been the result of Adjudication no. 1 and the delays in respect of which JGC was making claims.

6.3 Conclusions

6.3.1 I agree that the Parties were bound - albeit temporarily - by the Decision in Adjudication no. 1, which was published on 5 March 2019, until publication of the First Partial Award on 26 June 2020 which reversed Adjudication no. 1. The Adjudicator had decided that JGC's position as to contractual interpretation was correct: it is trite law that parties are obliged to observe and abide by an adjudicator's decision until the underlying dispute is finally determined by subsequent legal proceedings.

6.3.2 I have considered, but rejected, TRL's submission that JGC's actions after Adjudication no. 1 were not the result of the adjudication itself, but of JGC's decision to decline to carry out parts of the Subcontract work scope. JGC will have felt its position vindicated by the Adjudicator's decision, and although its stance was subsequently found in the Awards to be incorrect and thus in breach of contract, JGC was entitled to rely upon that decision - as TRL itself notes. TRL says that this was at JGC's own risk. In my view it would be invidious if abiding by an adjudicator's decision were to be deemed equivalent to proceeding at risk of major financial penalties that would result if the decision were to be reversed at a later stage, for reasons that I expand upon below.

6.3.3 The First Partial Award, although reversing the Decision in Adjudication no 1, cannot, as a matter of fact, have a retrospective effect on the lawfulness of the subsequent actions of the Parties, because the Parties were obliged to give effect - albeit temporarily - to that Decision. Neither should be penalised for doing so.

6.3.4 I would distinguish the issue considered here from one in which an adjudication takes place after termination by a subcontractor, where the issue might involve deciding whether there was wrongful termination or repudiation by one or the other party: the die would have been cast, as it were, and any adjudication [temporarily] determining compensation would be capable of reversal in a subsequent arbitration without any effect upon what in fact had actually occurred, because the casus belli would have arisen from actions already taken. Here, the actions that form the casus belli occurred after conclusion of the adjudication. Those actions can be said to have been caused, or at least influenced, by complying with the adjudicator's decision.

6.3.5 This is also different from reversal at arbitration of an adjudicator's decision involving simply payment of money: any sums paid in complying with the adjudicator's decision can (subject to solvency of the Party holding the amount decided) be paid back, with interest, and the parties restored to the position in which they would otherwise have been. Here, the effects of Adjudication no. 1 cannot be undone in this way. In effect, TR claims that it is entitled to recover excess costs arising as a result of the actions which followed Adjudication no. 1, but this highlights the factual basis of JGC's contention: any such excess costs arise as a result of the decision in Adjudication no. 1, which legitimised - albeit temporarily - JGC's refusal to carry out the work which had been decided to be outwith its work scope and which was thus not part of its contractual obligations. This in turn is likely further to have influenced TRL's decision to instruct such work to be carried out by others.

6.3.6 The alternative scenario would be for JGC to have speculated at the time that the decision was wrong - which would fly in the face of its submissions to the Adjudicator in that reference - and instead to accede to TRL's instructions to carry out work that the Adjudicator had determined to be outside the Subcontract work scope and which JGC considered itself entitled, at that stage ipso facto, to decline. Unless the adjudication decision was quite patently wrong and obviously susceptible to challenge and reversal in formal proceedings, that appears to me to be an absurd scenario.

6.3.7 TRL submits that an adjudication should not result in a final determination, but it would be more patently absurd if it were to be simply ignored. Recourse to adjudication would be rendered entirely pointless if, upon achieving a decision in line with its contentions, a referring party should - instead of relying on it and proceeding accordingly - ignore it altogether and proceed as if it had actually failed in the adjudication, merely because of a risk of later reversal in formal proceedings. To make any such decision on a rational basis and to proceed on such an assumption would require JGC to have decided, upon analysis, that its own submissions in the Adjudication were specious and that the Adjudicator's decision was wrong.

6.3.8 Short of unusual clairvoyance on JGC's part, JGC personnel would need to possess highly sophisticated legal qualifications equivalent to those of the eventual eminent arbitral tribunal - whose Awards of 70 and 77 pages respectively are by no means a summary dismissal of either JGC's contentions or the Adjudicator's conclusions - and at the least, legal qualifications superior to those of the Adjudicator.

6.3.9 I therefore conclude that TRL is not entitled to levy the contra charges claimed." (emphasis added)

Events subsequent to the Decision

Shortly after the Decision, on 24 April 2021, the Defendant asserted in correspondence, and for the first time, that, in relation to the Contra Charge, the Adjudicator had acted outside of his jurisdiction and was wrong and therefore that part of the Decision is unenforceable.

On 30 September 2021 the Claimant commenced these proceedings for enforcement of the Decision, seeking summary judgment. By the witness statement of Ron Nobbs dated 8 November 2021, the Defendant set out the basis upon which it contends that the Adjudicator lacked jurisdiction, relying upon the three arguments set out in paragraph 21 below.

The Defendant is challenging a number of aspects of adjudication decisions in the further arbitral proceedings, including Adjudication 4 in respect of the Contra Charge. Those proceedings are due to be heard in Spring next year.

The Parties' submissions in summary and the Issues

The Claimant applies for summary judgment to enforce the Decision, seeking payment of the unpaid Contra Charge plus interest.

The Defendant resists summary judgment on the ground that the Adjudicator acted in excess of his jurisdiction for three separate, but interlinked, reasons, namely that the Adjudicator

(1) undermined and in substance overrode Award 1;

(2) failed to act in accordance with the powers granted to him by the Subcontract;

(3) answered the wrong question.

In essence it submits that Adjudication 4 was so fundamentally wrong that the Adjudicator had no jurisdiction. Award 1 did have retrospective effect. The Adjudicator refused to give effect to Award 1 and had no jurisdiction to so refuse.

The Claimant denies that the Adjudicator acted outside his jurisdiction. The Defendant's arguments amount to no more than an assertion that the Adjudicator was wrong. The Adjudicator resolved the dispute referred to him and expressly did not re-open any disputes decided in Award 1, to do so. Any errors he made were within his jurisdiction. In any event, the Defendant has waived its right to raise a jurisdictional challenge at this stage.

The Defendant responds that it did not waive its right to object to jurisdiction for two reasons. First, the jurisdictional error here was fundamental and not capable of being waived. Secondly, at no point prior to publication of the Decision, was the Defendant in a position to waive its right to object, since it did not have actual or constructive knowledge of the jurisdictional error until that point in time.

Thus the two issues are:

(1) Did the Adjudicator act in excess of his jurisdiction?

(2) If so, did the Defendant waive its right to object to the Adjudicator's jurisdiction?

Before addressing these two issues, I set out the relevant legal background.

The Relevant Legal Background and Principles

The Scheme and the Subcontract

The Adjudicator was acting pursuant to s.108 Housing Grants, Construction and Regeneration Act 1996, the Subcontract and the Scheme for Construction Contracts (England and Wales) Regulations 1998 ("the Scheme").

The Scheme

The Construction Subcontract General Conditions ("the General Terms"), which formed part of the Subcontract, provided by Clause 39.2 that the Scheme applied to the Subcontract. Under the heading "Powers of the adjudicator", the Scheme itself provides, inter alia, by paragraph 12(a) that:

"the adjudicator shall – (a) act impartially in carrying out his duties and shall do so in accordance with the relevant terms of the contract and shall reach his decision in accordance with the applicable law in relation to the contract"(emphasis added)

Paragraph 23(2) of the Scheme provides that an adjudication decision is binding and shall be complied with by the parties "until the dispute is finally determined … by arbitration …"

Terms of the Subcontract

Clause 39.3 of the General Terms contained dispute resolution provisions, inter alia, as follows

"39.3 Arbitration

Should no amicable settlement be reached through negotiation, and unless otherwise specified in the Subcontract, the Parties expressly agree that any and all disputes, controversies, matters or claims of any nature whatsoever directly or indirectly arising out of, based upon, relating to or in connection with the formation, validity, existence, interpretation, application, implementation, performance, breach or termination of the Subcontract any provision or part thereof or any activities carried out in connection therewith, shall be finally settled by arbitration …

…

The Parties expressly state their express undertaking to abide by and comply with the arbitral award so rendered which shall be final and binding for all purposes.

However, the performance of the Parties' contractual obligations shall not be suspended pending resolution of any such dispute."

Enforcement of adjudication decisions

(1) General principles

As regards the approach of the Court to enforcement of the decisions of an adjudicator, the following general principles are derived from Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2006] BLR 15 (at §§52, 84, 85 and 87):

(1) The adjudication procedure does not involve the final determination of anybody's rights.

(2) The decision of an adjudicator must be enforced, even if it results from errors of procedure, fact or law.

(3) However, the court will not enforce a decision, where the adjudicator has acted in excess of jurisdiction or in serious breach of the rules of natural justice.

(4) Errors of law, fact or procedure will be examined critically before the Court accepts that such errors constitute excess of jurisdiction or serious breaches of the rules of natural justice.

(5) The Court must respect the adjudicator's decision unless it is plain that the question decided was not the question referred to him or the manner in which he had gone about the task was obviously unfair.

(6) In the overwhelming majority of cases, if the losing party does not accept the adjudicator's decision as correct in fact or law, the proper course is to pay the amount it is ordered to pay by the adjudicator, and then to take legal or arbitration proceedings to establish the true position.

(2) The binding nature of a prior decision (in adjudication and in arbitration)

The effect of a prior adjudicator's decision in a subsequent adjudication has been considered in a number of cases including, in particular, Benfield Construction Limited v Trudson (Hatton) Limited [2008] EWHC 2333 (TCC) §34; Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd [2009] EWHC 2218 (TCC) 127 Con LR 110 §§41 and 67 and Amey Wye Valley Ltd v The County of Herefordshire District Council [2016] EWHC 2368 (TCC) [2016] BLR 698 §§14, 15, 28, 31, 34 and 35. The issue is also addressed in Coulson on Construction Adjudication (4th edn) §7.145. From these authorities, the following general propositions can be stated:

(1) The parties are bound by the decision of an adjudicator until finally determined by court or arbitration.

(2) They cannot seek a further decision by an adjudicator if the dispute or difference has already been the subject of a decision by an adjudicator.

(3) The extent to which a decision is binding depends on an analysis of the terms, scope and extent of the dispute or difference referred to second adjudication and the terms, scope and extent of the decision made in the first adjudication.

(4) The relevant question is whether the dispute or difference is "the same or substantially the same".

(5) Whether one dispute is substantially the same as another dispute is a question of fact and degree.

(6) The second adjudicator has no jurisdiction to determine a dispute which is the same or substantially the same as a dispute determined in an earlier adjudication; if he purports to do so, the decision is a nullity.

It is common ground that the foregoing principles apply, a fortiori, to the effect of a prior arbitration award upon a subsequent adjudication.

As to the precise circumstances where this rule operates so as to exclude the second adjudicator's jurisdiction, slightly differing language has been used in the cases:

(1) A second adjudicator cannot open up any matters decided by the first adjudicator: Coulson supra.

(2) The second adjudicator can decide nothing to override or undermine the first adjudicator's decision: Balfour Beatty §41.

(3) The second adjudicator must not purport to decide again (or re-decide) something which has already been adjudicated upon: Balfour Beatty §41 and Amey Wye Valley §31.

(4) The second adjudicator must not materially decide matters contrary to what has been decided in the first adjudication: Balfour Beatty, heading above §66.

(5) The second adjudicator must not decide the later dispute in a way which is materially inconsistent with the earlier decision: Balfour Beatty §67.

(6) The second adjudicator must not re-decide something that was not before him: Amey Wye Valley §35.

Drawing these statements together, in my judgment, for the exclusion of jurisdiction to apply, the second decision must override or undermine the first, in sense of deciding again something which has already been decided. In my judgment, there is a distinction to be drawn between the content of the first decision and a second decision which determines the consequences of that first decision: Amey Wye Valley §§14 and 35. By way of examples, a dispute as to the true construction of contractual terms and a dispute as to the financial consequences of the true construction as found are not the same or substantially the same dispute; further an error of fact or law in applying the first decision may not amount to an excess of jurisdiction; see Amey Wye Valley, supra.

(3) Answering the wrong question

If the adjudicator decides a dispute which was not referred to him, then his decision is outside his jurisdiction. But if he decides a dispute which was referred to him, but that decision was mistaken, it remains a valid and binding decision, even if the mistake is of fundamental importance: Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] BLR 49 §25. The Adjudicator is entitled to give a wrong answer to the right question which was referred to him. In deciding whether a decision has been made outside an adjudicator's terms of reference, the court should give a fair natural and sensible interpretation to the decision in the light of the disputes that are the subject of the reference and the Court should guard against characterising a mistaken answer to an issue that lies within the scope of the reference as an excess of jurisdiction: Bouygues §36.

In considering this issue, it is important to distinguish between, on the one hand, the underlying dispute between the parties and, on the other, the issues and legal arguments which the parties choose to deploy when setting out their side of the dispute: Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333 (TCC) §48.

In my judgment, the issue is what "dispute" has been referred to the adjudicator and not what particular question or sub-question or issue falls to be determined. The key question is "did the adjudicator decide the dispute that had been referred to him?"

(4) Waiver of a jurisdictional objection

As to waiver of a jurisdictional objection, I have been referred to three decisions of Akenhead J, namely in Aedifice Partnership Ltd v Shah 132 Con LR 100; [2010] EWHC 2106 (TCC) §21(e); CN Associates (A Firm) v Holbeton Limited [2011] BLR 261; [2011] EWHC 43 (TCC) §33; Brims Construction Ltd v A2M Development Limited [2013] EWHC 3262 (TCC) §25 to 27 and to the judgment of Coulson LJ in the Court of Appeal in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2019] 3 All ER 337; [2019] EWCA Civ 27 §§91 to 99; and Coulson on Construction Adjudication, supra, §7.22. From these authorities, the following general principles can be stated in summary:

(1) An objection to jurisdiction will be waived where a party participates in the adjudication without any reservation of rights, provided that the grounds of the jurisdiction objection were known to, or capable of being discovered by, that party: Aedifice and CN Associates.

(2) Waiver does not apply to jurisdictional challenges which only emerge once the adjudicator's decision comes out (such as an adjudicator deciding a dispute which has not been referred to adjudication): Brims §25.

(3) A failure to raise a jurisdictional objection which it was open to a party to make during the adjudication, can be taken as a waiver: Brims §27.

(4) The fact that the party objecting had been represented by experienced leading counsel and/or solicitors throughout the adjudication may be a factor leading to a conclusion that it could not be said that that party did not know or should not have known about the grounds of the jurisdiction objection: Bresco §99.

In Bresco, in the course of addressing the issue of waiver, Coulson LJ stated at §91:

"In my view, the purpose of the 1996 Act would be substantially defeated if a responding party could, as a matter of course, reserve its position on jurisdiction in general terms at the start of an adjudication, thereby avoiding any ruling by the adjudicator or the taking of any remedial steps by the referring party; participate fully in the nuts and bolts of the adjudication, either without raising any detailed jurisdiction points, or raising only specific points which were subsequently rejected by the adjudicator (and the court); and then, having lost the adjudication, was allowed to comb through the documents in the hope that a new jurisdiction point might turn up at the summary judgment stage, in order to defeat the enforcement of the adjudicator's decision at the eleventh hour."