Clark Electrical Ltd v JMD Developments (UK) Ltd

For an ad hoc adjudication agreement, whether a party submitted to the adjudicator’s jurisdiction is a question of fact, determined by construing communications in context. A clear and unequivocal statement is not invariably required, but correspondence merely seeking procedural guidance or more time will not ordinarily amount to submission in the full sense. Payment of an adjudicator’s appointment fee is equivocal and does not, without more, establish agreement to be bound by the jurisdictional ruling. Summary enforcement may be resisted where that ruling is not plainly right.

Clark Electrical Limited sought summary judgment to enforce an adjudicator’s award against JMD Developments (UK) Limited. The adjudicator had found no statutory jurisdiction under section 105(2)(c)(ii) of the Housing Grants, Construction and Regeneration Act 1996, but concluded that the parties had entered into an ad hoc adjudication agreement when JMD paid his appointment fee.

JMD argued that it had made no agreement to adjudicate and had reserved its jurisdictional objection. The central issue was whether JMD’s email requesting procedural guidance and an extension of time, together with payment of the appointment fee, constituted submission to the adjudicator’s jurisdiction in the full sense.

1. Application dismissed. The adjudicator’s award was not summarily enforceable because his conclusion that an ad hoc agreement existed was not plainly right.
2. Whether a party submitted to an adjudicator’s jurisdiction is a question of fact. Correspondence must be construed according to ordinary principles, considering the background known to the reasonable recipient. A clear and unequivocal statement is not invariably required.
3. The email, read as a whole and in context, sought procedural guidance and additional time because JMD lacked documents, representation and familiarity with adjudication. It contained no reference to being bound by the adjudicator’s decision and did not amount to submission in the full sense.
4. Payment of the appointment fee was equivocal. Liability for an adjudicator’s fees may arise under a separate contract with the adjudicator even where jurisdiction is contested.
5. The court therefore held that the jurisdictional decision based on an ad hoc agreement was wrong, rather than plainly right. The claim was dismissed. The court declined to strike out the claim because there was no formal cross-application and the statutory jurisdiction issue had not been fully argued.