“Deny everything Baldrick”

Blackadder’s immortal words used to be the advice when challenging the jurisdiction of an adjudicator appointed under Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA 1986”).   Since at least the decision in GPS v Ringway Infrastructure [2010] EWHC 283 TCC that advice seemed well founded because the courts would not go behind what was termed a general reservation or challenge to an adjudicator’s jurisdiction.

However the position has now changed following the judgment of Coulson LJ in the very recent case of Bresco Electrical v Lonsdale [2019] EWCA Civ 27.  Henceforth parties who intend to participate in an adjudication whilst preserving their right to challenge the applicability of the HGCRA 1996 on any subsequent enforcement proceedings must raise each and every ground of that challenge with the adjudicator.  A failure to do so may prevent a party from raising a (new) jurisdictional challenge before the courts with the result that they are deemed to have accepted that the adjudicator had an ad hoc jurisdiction even if the provisions of the HGCRA 1996 had not in fact applied.

The rigour with which this new “rule” is likely to be applied is shown by the even more recent case of Ove Arup & Partners v Coleman Bennett International [2019] 1 WLUK 366.  Heard just two working days after judgment was given in Bresco, in Ove Arup Mrs Justice O’Farrell refused to allow the defendant to argue that the parties’ contract was not a “construction contract” for the purposes of the HGCRA 1996 Act because it had not raised this argument before the adjudicator but had only made a general jurisdictional challenge.  Describing the defendant as “unlucky” the Court found that the case fell within the dicta in Bresco and that the defendant was therefore estopped from arguing that the contract was not subject to the HGCRA 1996.

For those acting for respondents/defendants to adjudications the message is all too clear. From now on a Respondent’s Notice must set out every conceivable challenge to the adjudicator’s jurisdiction in order to preserve the position in any subsequent proceedings.  Respondents must do their legal homework early despite the very short (28 day) timeframe in which adjudications are usually decided.

Clifford Darton acted for the defendant in Ove Arup & Partners v Coleman Bennett International [2019] 1 WLUK 366 under the Direct Access Scheme.  He was not instructed in the earlier adjudication.