WSP Cel Ltd v Dalkia Utilities Services Plc

An adjudicator may determine his own jurisdiction where the parties have agreed that he has exclusive jurisdiction, in the first instance, to determine the effect and interpretation of an agreement governing the adjudication. If that determination is final and binding subject to court revision, the court will not re-investigate it on a summary enforcement application. Parties may subsequently agree to extend contractual time limits for referring disputes. Clear wording extending time for any aspect of a dispute may override earlier contractual limits. Under NEC adjudication provisions, claims arising from employer action or inaction remain within the corresponding prescribed categories and cannot be recast as matters falling within a residual category merely because they form part of a final account.

WSP sought summary judgment under Part 24 to enforce an adjudicator’s decision awarding payment following termination of a consultancy services contract incorporating the NEC 3 Professional Services Contract. The statutory adjudication provisions did not apply, so adjudication proceeded under NEC Option W1.

The parties later entered into a Consent Agreement concerning the validity and value of claims in WSP’s Final Account. It extended time for referring any aspect of the dispute and gave the adjudicator exclusive jurisdiction in the first instance to determine the agreement’s effect and interpretation. Dalkia challenged the adjudicator’s jurisdiction, including the effect of NEC time limits and the scope of the referral.

1. Summary judgment granted. WSP was entitled to enforce the adjudicator’s decision. Dalkia had no real prospect of successfully defending enforcement.

2. Clause 6 of the Consent Agreement gave the adjudicator exclusive jurisdiction in the first instance to determine the effect and interpretation of the agreement. In context, that necessarily included jurisdictional issues arising from the agreement. Because the adjudicator’s decision was final and binding subject to revision by the English courts, the court would not re-investigate that jurisdictional determination on a Part 24 enforcement application. The principle in Thomas-Frederic’s (Construction) Limited v Keith Wilson [2004] BLR 23 applied.

3. Alternatively, Dalkia’s email of 15 March 2012 conceded that Clause 6 conferred jurisdiction on the adjudicator to determine jurisdictional issues under the Consent Agreement, subject to the court’s power of revision.

4. Further alternatively, the adjudicator’s conclusion that the Consent Agreement extended time to refer every aspect of the Final Account dispute was plainly right. Recitals 5 and 6 and Clause 4 clearly extended time for referral of any aspect of the defined dispute and created a freestanding entitlement to refer unresolved aspects after the without prejudice discussions. The agreement therefore varied NEC clauses W1.3(1) and W1.3(2).

5. Absent the Consent Agreement, disputes arising from employer action or inaction fell within Grounds 1 or 2 of the NEC Adjudication Table. They could not be placed within Ground 4, “Any other matter”, merely because they were included in a composite final account. Claims 30 to 63 were nevertheless within the scope of the Notice of Adjudication, which was broad enough to encompass compensation-event claims.

6. The adjudicator could not reopen matters decided in the First Adjudication, but could determine the effect of the Consent Agreement. If particular claims had been outside jurisdiction, the decision could have been severed, applying the approach in Beck Interiors Limited v UK Flooring Contractors Limited [2012] EWHC 1808 (TCC).

This was a first-instance Part 24 enforcement application. The judgment records that an adjudicator had awarded WSP £1,054,800.60 exclusive of VAT and that WSP sought summary judgment to enforce that decision.