Adjudication - adjudicators - appointment from approved list under terms of contract

[Housing Grants, Construction and Regeneration Act 1996 s.108(1), s.108(2)(a).]

JM applied for a declaration that an adjudicator appointed in its dispute with its subcontractor, H, did not have jurisdiction and for an injunction restraining the continuation of the adjudication procedure. The subcontract between JM and H provided for referral of a dispute to adjudication only after attempts had been made for at least four weeks to resolve the dispute, and for the adjudicator to be nominated by JM from its list of approved adjudicators. When the dispute arose, H had asked the Royal Institute of Chartered Surveyors to appoint an adjudicator, and when JM objected, had then asked the Institute of Civil Engineers to do so. JM still objected and brought the application, arguing that the subcontract procedure had not been followed.

Held, allowing the application, that the contract breached the Housing Grants, Construction and Regeneration Act 1996 s.108(1) and s.108(2)(a) in view of the lack of any right to make an immediate reference to adjudication. Accordingly the adjudication provisions of the Scheme of Construction Contracts were applicable. JM's list of approved adjudicators, whilst it had not been supplied as part of the subcontract, was sufficiently certain to comply with the Scheme and therefore an adjudicator had to be appointed from that list.

JOHN MOWLEM & CO PLC v. HYDRA TIGHT LTD (T/A HEVILIFTS); sub nom. JOHN MOWLEM & CO PLC v. HYDRA TIGHT & CO PLC (2001) 17 Const. L.J. 358, Judge Toulmin Q.C., QBD (T&CC).

"Current Law" January 2002