Bickerton Construction Limited v Temple Windows Limited 1

The scope of the adjudicator's jurisdiction stems from the Notice of Adjudication, and determination of the final account had been expressly excluded from it. He had no jurisdiction to determine the gross valuation figure from which to deduct payments already made and sums which B was entitled to withhold.

Her Honour Judge Frances Kirkham, Technology & Construction Court, Birmingham County Court

26 June 2001

B engaged T to carry out work under a construction contract based on the DOM/2 form. B determined the contract due to concerns regarding progress and lack of quality of materials and workmanship, and engaged others to complete the work and remedy defects in T's work.

B gave notice of adjudication on the basis that disputes had arisen between B and T. B alleged that T had breached the subcontract and had failed to complete the work. B had issued notices in accordance with DOM/2 and sections 110 and 111 of the HGCRA. B sought additional costs incurred in completing the contract and carrying out remedial works in excess of the sums withheld, in obtaining an expert opinion in respect of works which would not have been necessary had T complied with its contractual obligations, recovery of costs to be incurred in respect of further corrective works, recovery of other projected costs and an order to pay the adjudicator's costs. B set out these claims in the Referral Notice and attached a schedule of payments made to T and details of withholding notices.

T's own final account was sent to the adjudicator. T did not accept that there was a dispute, and therefore argued that adjudication was inappropriate, however if the adjudication was to continue, then T's final account should be included. The adjudicator invited the parties to broaden the scope of his jurisdiction, however B objected to suspension of the adjudication and to inclusion of T's final account.

The adjudicator decided that, as the Notice of Adjudication did not specify the exact sum claimed, his decision would address the sum to which he considered B to be entitled. He based his decision on B's account. T refused to pay either the sum decided or its share of the adjudicator's costs. B sought summary judgment to enforce the adjudicator's decision.

The Judge held that the adjudicator had exceeded his jurisdiction as he had, by his decision, determined T's final account. The scope of the adjudicator's jurisdiction stems from the Notice of Adjudication, and determination of the final account had been expressly excluded from it. The adjudicator knew that T had contended for a higher figure than B because B's submission referred to it and he had seen T's final account. The word 'recovery' in the Notice of Adjudication was sufficient to entitle the adjudicator to award a sum of money, however he had no jurisdiction to determine the gross valuation figure from which to deduct payments already made and sums which B was entitled to withhold. Therefore he did not have jurisdiction to calculate that a sum of money was actually payable to B or to order that a sum be paid. B was not entitled to summary judgment.

The scope of the adjudicator's jurisdiction stems from the Notice of Adjudication, and determination of the final account had been expressly excluded from it. He had no jurisdiction to determine the gross valuation figure from which to deduct payments already made and sums which B was entitled to withhold.