J & B Hopkins Limited v A & V Building Soltuions Limited
[2023] EWHC 301 (TCC)
Mclaughlin & Harvey Limited v LJJ Limited
2 May 2024
[2024] EWHC 1032 (TCC)
High Court
Two companies had a construction dispute. A judge decided the adjudicator incorrectly changed his mind after the first ruling. The original ruling had to be followed because the adjudicator didn't have the power to change it. The company that originally won, still won.
Key Facts
- •MCLAUGHLIN & HARVEY LIMITED (MHL) sought summary judgment to enforce an adjudicator's decision against LJJ LIMITED (LJJ) for £808,000.
- •LJJ resisted enforcement, arguing the decision was superseded by a revised decision, the adjudicator erred within his jurisdiction, MHL approbated and reprobated the decision, and MHL couldn't enforce the revised decision.
- •The dispute arose from a JCT 2016 Design and Build Sub-Contract between MHL and LJJ, with a Sub-Contract Sum of c.£17m.
- •This was the fifth adjudication between the parties, all previous decisions being binding.
- •The adjudicator initially ordered LJJ to pay £808,000 within 7 days (Decision).
- •LJJ's submissions, going beyond clerical error correction, led the adjudicator to issue a revised decision (Revised Decision).
- •The Revised Decision contained the added words “if not already allowed”
Legal Principles
An adjudicator's power to revise a decision is limited to correcting clerical or typographical errors under the Scheme for Construction Contracts 1998, paragraph 22A(1).
Scheme for Construction Contracts 1998, paragraph 22A(1)
An erroneous exercise of power by an adjudicator does not automatically constitute an excess of jurisdiction; the court focuses on whether the adjudicator purported to exercise a power they did not have.
Lesotho Highlands Development Authority v Impregilo SpA [2006] 1 A.C. 221
Courts should be cautious in characterising a mistaken answer to an issue within the scope of the reference as an excess of jurisdiction, given the speedy nature of adjudication.
O’Donnell Developments Limited v Build Ability Limited [2009] EWHC 3388 (TCC)
The doctrine of election prevents a party from inconsistently relying on an adjudicator's decision.
Macob Civil Engineering Limited v Morrison Construction Limited (1999) BLR 93
Outcomes
Summary judgment granted to MHL to enforce the original adjudicator's decision of 31st October 2023 for £808,000.
The Revised Decision was not a correction of a clerical error, but a substantive alteration based on further submissions. The adjudicator exceeded his powers under paragraph 22A(1) of the Scheme for Construction Contracts 1998. MHL's actions did not constitute approbating and reprobating the decision.