Palmac Contracting Ltd. v Park Lane Estates Ltd.

On an application to enforce an adjudicator’s decision, the court may consider jurisdictional objections summarily. Where the responding party has reserved its position, enforcement is appropriate if the adjudicator’s jurisdictional ruling was plainly right. An adjudicator deciding a dispute about payment may determine whether the underlying payment application was validly made. A contractual adjudication procedure requiring an appointment within seven days of notice does not necessarily require the nomination application to be made after the notice. Natural justice is not breached merely because the adjudicator considers a legal issue arising from material on which both parties had an opportunity to comment.

The claimant sought summary judgment enforcing an adjudicator’s decision requiring payment of £169,912.85 plus VAT. The defendant resisted enforcement, alleging that no dispute existed, that the adjudicator had been appointed contrary to the contractual procedure, and that the adjudicator had breached natural justice.

The dispute concerned whether an application for payment had been validly served by email, whether the adjudicator’s nomination was valid where the nomination request preceded service of the notice of adjudication, and whether the adjudicator had departed from an agreed position concerning service.

1. Summary judgment and jurisdiction. Applying Thomas-Fredric’s (Construction) Ltd v Keith Wilson [2004] BLR 23, the defendant had not submitted to the adjudicator’s jurisdiction. Enforcement therefore depended on whether the adjudicator’s jurisdictional ruling was plainly right.
2. Existence of a dispute. The adjudicator was asked to decide the dispute concerning payment application No 20 and the amount due. Whether that application had been validly made was an issue within that dispute and therefore within the adjudicator’s jurisdiction. The court could not revisit the correctness of the adjudicator’s answer once he had answered the correct jurisdictional question.
3. Appointment procedure. Clause 39A.2.2 did not require an application to the nominator to be made only after service of the notice of adjudication. The word “then” linked the contractual provisions and was not chronological. The appointment was valid. IDE Contracting Ltd v R G Carter Cambridge Ltd [2004] BLR 172 was distinguishable because it concerned different provisions in the Scheme.
4. Procedural non-compliance. Clause 39A.5.6 could not validate an invalid appointment; it applied only to procedural steps within a validly constituted adjudication.
5. Natural justice. The adjudicator did not construct a party’s case or introduce new evidence. Both parties knew that article 3 was under consideration and had an opportunity to comment. The adjudicator was entitled to take the initiative in ascertaining the facts and law under clause 39A.5.5. The circumstances were materially different from those in Balfour Beatty v London Borough of Lambeth [2002] BLR 288.
6. Disposition. The defendant had no real prospect of successfully defending the claim. Summary judgment was granted to enforce the adjudicator’s decision.