Once the adjudicator has accepted an appointment, almost as night follows day, a jurisdictional challenge will come. Akin to the first labour of Heracles, the jurisdictional challenge is one of the most demanding tasks that the adjudicator shall face. Typically advanced by the responding party, the adjudicator will be faced with a jurisdiction challenge identifying issues as to why she must resign. This chapter hopes to provide guidance on best practice and highlight the limits of the adjudicator’s powers.

The first principle as set out in Grovedeck Ltd v Capital Demolition Ltd [2000] is that a party may invite the adjudicator to enquire into its jurisdiction, but not to decide it. That is, any decision will not be binding on the parties. To expand further, a party can submit its position to the adjudicator and then proceed to take part in the adjudication making it plain that it has fully reserved its position throughout the procedure. Once a decision has been issued, that party then has the option to challenge the decision in enforcement proceedings or through a Part 8 application. Unlike a breach of natural justice, this challenge may be upheld with disregard to any prejudice being suffered.

There are a few exceptions to the principle in Grovedeck that any adjudicator’s decision as to jurisdiction will be non-binding and challengeable. Firstly, the parties can agree to the adjudicator having the power to make a binding decision. Secondly, the adjudication rules may confer that power on the adjudicator. The Technology and Construction Solicitors’ Association (TeCSA) Adjudication Rules state that the adjudicator shall have the power to “decide upon his own substantive jurisdiction“.

Three Step Process

In the event of a jurisdictional challenge, the following section proposes a standard procedure the adjudicator might consider taking.

1. Act

Although there is no obligation on the adjudicator to make enquiries in respect of a jurisdictional challenge, it is considered best practice in order to conduct the adjudication properly. On receipt of a challenge, the adjudicator should give directions to the parties with the objective of concluding the issue as soon as possible so that all parties can focus on the substantive dispute.

The Courts have mandated that where there is a challenge of a dispute already decided, in these circumstances the adjudicator should take a more proactive approach to determine the facts and satisfy herself as to the extent of her jurisdiction. The author opines that by taking a proactive approach the adjudicator must tread carefully as to not ‘enter the arena’.

In Steve Ward Services v Davies & Davies Associates [2022] EWCA, Coulson LJ stated that when the adjudicator identifies a “real issue as to jurisdiction” she should not stay silent and “proceed solemnly to the end of the process leaving the point to any disputed enforcement hearing“. He said that putting one’s head in the sand would strike at the heart of an efficient system. Again, the adjudicator in taking a proactive approach must be mindful of apparent bias.

2. Invite Comments

The Court of Appeal confirmed in Amec v Whitefriars [2004] that the parties have no explicit right to be heard by the adjudicator on preliminary matters that go to jurisdiction. However, the adjudicator should give the parties an opportunity to comment on a jurisdictional issue and that even extends to an issue that prima facie appears nebulous and ill-founded.

The directions should be clear and definitive in order to prevent the issue lingering and impacting the time constraints on the procedure. This might give both parties a day to submit their positions with the stipulation of one round of submissions only. Further submissions will be at the adjudicator’s discretion, dependent on the facts and whether the adjudicator requires further particulars.

3. Decide

Having considered the jurisdictional issues raised the adjudicator should advise the parties of her non-binding decision with brief reasons. This will result in the adjudicator proceeding to reach a decision on the substantive dispute or otherwise deciding to resign.

Where the adjudicator has uncertainty over her jurisdiction, the adjudicator should give priority to proceeding. On the other hand, where the adjudicator finds there is no jurisdiction, she must resign. Before resigning, the adjudicator should give the parties a fore warning along the lines of ‘unless there is unequivocal acceptance of my jurisdiction and the binding nature of any decision produced then I will be forced to resign’. This is particularly pertinent if the adjudicator has raised the jurisdictional issue as in such cases the parties may be more accommodating in waiving the issue.

Included in the decision on the substantive dispute, it is advisable that the adjudicator details her findings on the jurisdictional issue. This will militate enforcement proceedings, but should that be necessary the court will be properly informed.