This was an adjudication enforcement case where it was agreed that RMP had worked pursuant to a construction contract, but there was disagreement about how that contract was formed. RMP said it was formed by an email sent to RMP by Chalcroft on 5 December 2014, which accepted an offer made by RMP. Chalcroft put forward three alternatives and said that if the contract was formed by (or included) the Letter of Intent or by (or included) the sub-contract order, the contract incorporated a standard form of JCT contract wording. Mr Justice Stuart-Smith noted that whatever route you took, the Scheme applied and no adjudicator nominating body was specified by the parties. Thus, whichever the correct contractual analysis was, the procedure for appointing the adjudicator was the same: being that laid down by the Scheme.
Further, it was agreed that if RMP’s interpretation was correct, then Chalcroft did not serve a pay less notice in time, with the result that the adjudicator’s conclusion on RMP’s entitlement would have been correct. However, it was also agreed that if one of Chalcroft’s interpretations of the substantive obligations imposed by the applicable contract was right, it was at least reasonably arguable that a pay less notice sent on 26 August 2015 was valid and in time, and the adjudicator’s conclusions would have been wrong.
RMP said that once it was acknowledged that the adjudicator would have had jurisdiction and would have acquired jurisdiction by the same procedural route whichever contractual interpretation was correct, the fact that different contractual interpretations may have led to different substantive outcomes was irrelevant. In such circumstances, the adjudicator was validly appointed and if, which was disputed, he misinterpreted the substantive contractual provisions so as to come to an incorrect answer, then that was no bar to enforcement of his decision.
The Judge noted that the distinction between jurisdictional challenges to enforcement and challenges alleging substantive error should be approached in two separate stages. The first question is whether the adjudicator had jurisdiction. The answer to that question here was that he did, on any contractual route being proposed by either party. He had jurisdiction and was to be appointed under the Scheme. Chalcroft’s only point on jurisdiction was that RMP had not properly identified the contract that gave rise to the Scheme route to jurisdiction.
Whilst the Judge noted that it may be “linguistically and even technically correct” to describe Chalcroft’s various alternative formulations as different contracts from the contract alleged by RMP, that difference should not be determinative when it was remembered that the Court was concerned with one contracting process, with the only question being which party has correctly identified where in that process the relevantly binding contract was formed. Where it is agreed that each of the alternatives was sufficient to found jurisdiction under the identical route of the Scheme, it seemed to the Judge that to rule RMP “out of court” because it may have misidentified the contractual provisions that would give the adjudicator jurisdiction under the Scheme was a “return to the formalistic obstacle course”. The Judge noted that: “the adjudication system was and is meant to provide quick and effective remedies to parties, equally accessible to those who are legally represented as to those who are not; and I bear in mind that the system now covers not only written contracts but also oral contracts which increases the likelihood that they may be mis-described”.
Therefore the adjudicator had jurisdiction because, however the contractual arrangements between the parties were correctly to be described, they mandated the use of the Scheme and he was properly appointed by the Scheme’s procedure. The Judge made it clear that he was not ignoring the possible difference in substantive outcome that could arise from identifying the contract correctly. But the important point to note was that these substantive differences went not to jurisdiction but to substantive outcome only. Once that approach was adopted, the present case was to be treated as one where the adjudicator had jurisdiction to resolve the dispute that was referred to him (namely, how much was owing under interim application number 8) and addressed the correct question without bias, breach of natural justice or any other vice that would justify overturning his decision. The Judge concluded that:
“If, which cannot be resolved now, he has made an error of law in referring to the wrong contractual provisions when deciding the substantive question that was referred to him, that falls within the category of errors of procedure, fact or law which the Court of Appeal has repeatedly emphasised should not prevent enforcement.”