It is often difficult for a party to maintain a reservation of rights in relation to an adjudicator’s jurisdiction. The recent case of PT Building Services Ltd v ROK Build Ltd  EWHC 3434 (TCC) highlights that difficulty and confirms that the party’s stance on jurisdiction must be consistent in order to preserve any reservation of rights. What a party cannot do is ‘blow hot and cold’ or, in technical terms, both ‘approbate and reprobate’ an adjudicator’s decision. To read the judgment click here.
The contractor maintained challenges to the adjudicator’s jurisdiction throughout the first adjudication. When the contractor refused to pay to the sub-contractor the sum awarded by the adjudicator, the sub-contractor started a second adjudication regarding the same dispute, in an effort to ‘cure’ the jurisdiction arguments raised by the contractor. In response to the second adjudication, the contractor argued that the first adjudicator had already decided that dispute and persuaded the second adjudicator to resign. The court held that, by doing so, the contractor had ‘elected’ to treat the adjudicator’s first decision as valid. Once the second adjudication was commenced, ROK had to elect whether to (a) contend that the first decision was unenforceable, so that it would not preclude PT from commencing the second adjudication, or (b) contend that first decision was enforceable, so that it would preclude a second adjudication. ROK chose (b) and, by doing so, it elected to rely on the benefit of the first decision and could no longer challenge that decision. The second adjudicator’s decision to resign in the second adjudication, as a result of ROK’s stance, was a clear benefit that ROK obtained by relying on that first decision. In those circumstances, it could not now seek to challenge the validity of the adjudicator’s decision in the enforcement proceedings.