A referring party failed to obtain enforcement of the adjudicator's decision because the adjudicator had failed to consider the responding party's response. The response was served late (by about 5 hours). The adjudicator maintained that under the DOM/2 adjudication rules he had no scope to extend the time for service of the response. If it was late, and the parties did not agree an extension, he could not consider it. The court agreed with the adjudicator and the referring party that the appropriate rules were DOM/2 (and not TECSA as alleged by the referring party), but the court disputed the adjudicator's position that under those rules he was not entitled to grant an extension of time for the service of the response. Failure to consider the response was a breach of the rules of natural justice (the right of a party to be heard) and as a consequence the decision was unenforceable.
Things to consider
This judgment in this case serves as a useful reminder that:
- There is a reasonable expectation of parties to an adjudication that, within reason, each party's submissions will be considered by the adjudicator. As referring party, think twice about asserting that the response is served out of time and should not be considered by the adjudicator. If successful, it may well only provide problems in the future when seeking enforcement of the decision.
- Care should be taken when drafting sub-contract terms providing that adjudication be undertaken in accordance with the main contract (as here). A careful check should be made to ensure that such a term is not inconsistent with any other terms in the sub-contract. In this case, it led to confusion as to which adjudication rules applied.
- It is imperative that a party expressly reserves its right to rely on, at a later date, any jurisdictional issue raised in the adjudication. If you fail to do this, then the court will assume, (as in this case and VGC v Jackson), the issue of jurisdiction was finally submitted to the adjudicator for determination, and the chance to raise it again during enforcement proceedings will be lost.
CJP Builders v William Verry  EWHC 2025 (TCC)