Billingford Holdings Ltd & BFL Trade Ltd v SMC Building Solutions Ltd & Anor

The Technology and Construction Court will intervene in an ongoing adjudication by injunction or declaration only in rare or exceptional circumstances. A jurisdiction challenge in a conventional adjudication should ordinarily be determined at the enforcement stage, even where the challenge appears clear or compelling. The court should not suspend the adjudication or grant an interim extension of time where doing so would interfere with the adjudicator’s control of the procedure.

The claimants applied urgently for interim injunctive relief to restrain an adjudication concerning a construction contract. They challenged the adjudicator’s jurisdiction, including the validity of his nomination and whether the claimants had submitted to his jurisdiction. The adjudicator had considered and rejected those challenges and directed that the claimants’ response be served that day.

The application was issued and served at short notice. The court considered whether the adjudication should be suspended pending a substantive hearing and whether the jurisdiction issues should instead be resolved immediately by the court.

1. Application refused. The court made no order on the claimants’ application for interim relief.
2. The jurisdiction to grant an injunction, or a declaration having equivalent practical effect, in an ongoing adjudication exists but must be exercised very sparingly. The adjudication process should, wherever possible, operate free from court intervention.
3. The fact that a jurisdiction challenge appears clear, or that the adjudication may have no prospect of producing a binding decision, is not the correct test. The challenges advanced were conventional and did not place the case within the rare or exceptional category.
4. Jurisdictional objections should ordinarily be taken at enforcement. The correctness of the adjudicator’s conclusions about nomination and submission to jurisdiction could be determined at that stage if enforcement were challenged.
5. The court should not suspend the adjudication pending a return hearing where that would interfere with the adjudicator’s timetable and effectively grant an extension for serving the response. The adjudicator was in charge of the timetable, not the court.