Ove Arup & Partners International Ltd v Coleman Bennett International Consultancy Plc

In adjudication enforcement proceedings, a party that wishes to challenge jurisdiction must raise the objection appropriately and clearly. A vague general reservation is insufficient where the party knew, or should have known, the specific grounds of challenge. A party that advances specific jurisdictional objections and loses them may be precluded from raising new objections at enforcement.

Engineering design and advisory services fall within Part 2 of the Housing Grants, Construction and Regeneration Act 1996 where they have a sufficient nexus with anticipated construction operations. The construction project need not be ready to proceed. An adjudicator may determine issues concerning variation or the effect of later agreements where there is an underlying dispute under one contract.

Arup sought summary judgment to enforce an adjudicator’s decision requiring CBI to pay £389,268.43 plus interest for engineering services concerning the feasibility of a proposed Hyperloop transport link.

CBI resisted enforcement on jurisdictional grounds. It argued that the services were outside Part 2 of the Housing Grants, Construction and Regeneration Act 1996, that the adjudication concerned more than one contract or dispute, and that factual issues concerning variation, contracting parties and authority could not properly be resolved summarily.

1. Enforcement. Summary judgment was entered for Arup to enforce the adjudicator’s decision.
2. Waiver and reservation. Applying Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2019] EWCA Civ 27, a jurisdictional objection must be raised appropriately and clearly. CBI’s general assertion that Part 2 applied did not identify the basis of its objection. CBI had expressly pursued two different jurisdictional objections, lost them before the adjudicator, and could not introduce a new challenge at enforcement. Its wording also attempted impermissibly to keep all possible objections open.
3. Construction contract. Sections 104 and 105 of the Housing Grants, Construction and Regeneration Act 1996 include agreements for architectural, design, surveying and engineering advice in relation to construction operations. The anticipated operations may be future operations. The construction contract need not itself be ready or separately concluded, but there must be a sufficient nexus between the services and a specific anticipated scheme. The proposed tunnel and station design work satisfied that requirement.
4. Severance. If jurisdiction had remained open, severance would not have been possible. Following the approach in Cleveland Bridge UK Ltd v Whessoe [2010] EWHC 1076, the adjudicator would have needed to determine precisely the sum allowable within jurisdiction, rather than merely identify proportions of work.
5. One contract and one dispute. Paragraph 8 of the Scheme for Construction Contracts Regulations 1998 permits an adjudicator to determine one dispute under one contract, absent consent. However, the adjudicator had jurisdiction over the April 2016 contract and could determine whether later exchanges varied it or affected its terms. The adjudicator’s construction of the fee agreement was a merits decision, not a jurisdictional error.
6. Factual challenges. CBI had no real prospect of establishing a separate October contract with DCN. A challenge to an adjudicator’s factual findings is not, by itself, a good ground for resisting enforcement.

First-instance decision. The judgment does not state any prior appellate history.