A subcontract contained three sets of terms under which, potentially, either party could request adjudication. The different adjudication provisions were likely to involve different adjudicators being nominated and, not only did the different rules involve different adjudicator nominating bodies (ANBs), but they contained real differences of procedure. In taking its claim to adjudication, however, the claimant contractor did not disclose its position other than by explaining in the Referral Notice how it had arrived at the choice of ANB and the adjudicator decided on the adjudication rules to be applied. The subcontractor challenged the adjudicator’s jurisdiction, saying that identification of the terms under which he was appointed and under which he purported to act went to the heart of his jurisdiction.
The court said that the adjudicator has no power to determine what rules of adjudication apply if there is a dispute about those rules and the dispute makes a material difference as to the procedure for appointment, the procedure to be followed in the adjudication or the status of the decision. The substantive (as opposed to the formal) validity of a notice of adjudication depends on whether it can be shown that the correct rules have been applied. It does not depend on what is said in the notice or in the request for a nomination. And a notice of adjudication or purported nomination made under a contractual provision or legislative power which, on a correct analysis, does not apply is invalid. On the judge’s analysis of the subcontract provisions not only had the adjudicator chosen the wrong governing adjudication rules but his appointment was made by the wrong body, which meant that he therefore had no jurisdiction to make his decision.