EWHC 3434 (TCC)
ROK resisted enforcement of an adjudicator's decision. When PTB started adjudication proceedings, ROK took a number of points on jurisdiction including that there was no dispute. The adjudicator rejected those arguments and decided that ROK should pay the sum of some £314k. ROK paid the adjudicator his fees. PTB were concerned that ROK’s jurisdictional challenge would be the source of considerable argument and expense in the court proceedings. PTB therefore issued a new notice of adjudication and applied for and obtained a new adjudicator. ROK objected on the basis that the exact same dispute had been the subject of a previous adjudication commenced by PTB. The second adjudicator resigned. PTB therefore sought to enforce the first decision. PTB said that by taking the benefit of the adjudicator's decision and using it to persuade the second adjudicator to resign, ROK could no longer assert that the first decision was not valid and binding. PTB also relied on the fact that ROK had paid the adjudicator's fees. ROK said that they had reserved their position in the second adjudication. They said the payment of the adjudicator's fees was made by mistake. That payment could not be said to be taking any benefit from the decision.
In the view of Mr Justice Ramsey, a party cannot both assert that an adjudicator's decision is valid and at the same time seek to challenge the validity of the decision. The party must elect to take one course or the other. The Judge recognised that the commencement of the second adjudication caused a difficulty for ROK in relation to any challenges it wished to make in relation to the first decision. However, ROK had to elect whether to argue that the first decision was unenforceable so that it would not preclude PTB from starting the second adjudication or whether to argue that it was enforceable so that it would preclude a second adjudication. ROK chose the second alternative. In doing so, it meant that ROK had elected to treat the first decision as valid. Therefore, the Judge did not consider that ROK could now seek to challenge the validity of the decision in the enforcement proceedings.
In relation to the payment of the fees, the Judge concluded that in the absence of any circumstances indicated to the contrary, by making the payment of these ROK elected to treat the decision of fees and expenses being a valid decision, at least to that extent. ROK had also argued that the failure by PTB to provide copies of the relevant construction contracts with the Referral Notice meant that PTB were in breach of the paragraph 7(2) of the Scheme. Mr Justice Ramsey said that it was undesirable that every breach of the terms of the Scheme, no matter how trivial, should be seized upon to "impeach the process of adjudication" and that "to do so would increase the tendency of parties to take a fine tooth-comb to every aspect of the adjudication in the hope of finding some breach of the Scheme …". Here, the Judge did not consider their failure to include the relevant construction contracts until a day later was so deficient that it effected the validity of the adjudication process.