R. Durtnell & Sons Ltd. v Kaduna Ltd.

Under a standard-form construction contract, no adjudicable dispute concerning an extension of time or consequential loss and expense exists while the contractually appointed architect’s decision remains pending and the permitted decision period has not expired. An adjudicator therefore exceeds jurisdiction by deciding such matters prematurely. A referral is confined by the notice: a reference concerning whether work is a variation or relevant event does not, without more, refer its effect on completion or delay costs. A party may raise excess-of-jurisdiction objections at enforcement unless it knowingly waived them. The doctrine of approbation and reprobation applies to adjudication decisions, but only where the accepted and challenged matters form part of the same dispute.

R. Durtnell & Sons Ltd. v Kaduna Ltd. concerned enforcement of an adjudicator’s decision under a JCT Standard Form building contract. The adjudicator awarded sums for extensions of time, prolongation costs, variations and other matters, including delay after the latest architect’s completion-date decision.

The employer paid part of the award but challenged the adjudicator’s jurisdiction over later extensions of time, related loss and expense, and a subcontractor’s unformulated claim. The contractor sought summary judgment for the unpaid award balance and an interim certificate. The central issues were whether the matters had been disputes when referred, whether they fell within the notice, whether jurisdictional objections had been waived, and whether the employer was approbating and reprobating.

1. The surviving claims failed. The adjudicator had no jurisdiction to determine an extension of time beyond 22 February 2002, or loss and expense dependent upon such an extension, because the architect’s determination was still pending when the notice was served and the contractual decision period had not expired. Until the architect had decided, or the time for decision had elapsed, there was no dispute capable of referral.

2. The notice did not refer the question whether the Extra Works had caused delay to completion. It referred only whether they were Relevant Events and the valuation of the work. The adjudicator consequently had no jurisdiction to award an extension of time or related loss and expense on that basis.

3. The adjudicator also lacked jurisdiction to assess A&A’s loss and expense after 14 December 2001. A&A had made no claim for that period, and there could be no dispute about a claim not yet made.

4. A party is not automatically barred from raising an excess-of-jurisdiction objection at enforcement merely because it participated in the adjudication. The issue is waiver. Waiver requires knowledge that the objection is available and an election not to raise it. The circumstances did not establish such an election by Kaduna.

5. The doctrine of approbation and reprobation applies to adjudication. A party cannot accept and challenge parts of the decision on the same dispute where it has knowingly taken a benefit. However, the doctrine did not apply here because the accepted matters concerned different disputes from those challenged.

6. The adjudicator had jurisdiction to decide whether Practical Completion had occurred and, if so, when. He lacked jurisdiction to decide the separate question whether liquidated damages were payable because completion had not occurred earlier. The decision therefore did not prevent Kaduna relying on its withholding notice concerning interim certificate 41.

First-instance decision. No prior appellate decision is stated in the judgment.