A defendant in adjudication proceedings challenged the adjudicator’s jurisdiction and fully reserved its rights. It also paid the adjudicator’s fees, without any covering letter or explanation, but did that payment sink its challenges to jurisdiction?
The adjudicator’s terms had not been expressly accepted by the parties but the court ruled that they had been accepted by the defendant, by conduct. Under those terms the adjudicator’s fees were payable by the parties, jointly and severally, even if the adjudicator’s decision was found to be unenforceable because of a lack of jurisdiction. In the judge’s view, both the defendant’s reservation of its rights and the relevant clause of the adjudicator’s terms permitted the defen- dant to challenge jurisdiction on enforcement, regardless of the payment of the adjudicator’s fees. Even if the judge was wrong on that, in the absence of proper evidence about the basis upon which the fees were paid by the defendant, the judge was not persuaded that the circumstances were sufficiently clear cut in the case to conclude that the defendant had lost the ability to challenge jurisdiction. This was a fact specific issue in this particular case, and should not be seen as authority or encouragement to parties not to follow previous authorities that did not apply in this case.
The defendant did, however, fail in its jurisdictional challenges. In the judge’s view, the case was an example of a party “scrabbling around” trying to find reasons not to comply with an adjudicator’s decision.