The claimant, Dean & Dyball, had retained the defendant consulting engineers to design an impounding gate across the entrance of a marina. The defendant designed a gate that was manufactured and installed in the entrance to the marina, but that never worked properly. The claimant brought a claim for breach of contract and negligence in adjudication, and the adjudicator awarded it additional costs it had had incurred as a result of the defective design of the gate. The defendant declined to pay the adjudicator's award, and so the claimant brought proceedings in the Technology & Construction Court to enforce it.
*Full case details
Dean & Dyball Construction Limited vs Kenneth Grubb Associates Limited, 28 October 2003, High Court, Queen's Bench Division, Technology & Construction Court, Judgment of His Honour Judge Richard Seymour QC
The defendant sought to resist enforcement of the decision on five grounds:

  • The claim referred to adjudication was not the same claim as the one the parties had been corresponding about prior to the notice of adjudication.

  • The contract between the parties was not capable of being adjudicated because it was not "in writing" as defined by s107 of the HGCRA 1996.

  • The dispute was not validly referred to adjudication under the contractual provisions.

  • The adjudicator made an error of law by answering the wrong question.

  • The procedure lacked fairness.

    • Reference

    The judge enforced the adjudicator's decision on the following basis:

  • The dispute concerned liability, and it did not cease to be a crystallised dispute simply because the quantum of the claim was changed.
  • A written contract had been concluded, for the purposes of the Act, that incorporated the ACE Conditions (including provision for adjudication).
  • The notice of adjudication did encompass the legal basis upon which the claim succeeded.
  • The adjudicator had addressed the correct issue in law, namely whether the defendant had performed its contractual obligations with reasonable skill care and diligence.
  • The procedure adopted by the adjudicator of conducting separate interviews with the parties and their experts was permitted by the CIC Model Adjudication Procedure and was not unfair.

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    • Postscript

    This case provides a useful (although not exhaustive) checklist of plausible excuses for not complying with an adjudicator's decision against you. It also provides a reminder, however, that the courts are not quick to uphold these excuses. In the judge's words: "The approach adopted on behalf of [the defendant] to the application for summary judgment on behalf of [the claimant] was simply to seek to raise any and every point, good, bad or indifferent, by way of objection to the Decision without regard to whether any particular point was consistent with, or arguably properly alternative to, any other point." The judge laid emphasis in his judgment upon looking at "what, on the facts, the dispute between the parties was actually about". He thus dismissed the defendant's first point on the basis that it was arguing about liability, and that this dispute had crystallised irrespective of the precise amounts claimed. He avoided the question of whether the contract was "in writing" for the purposes of s.107 HGCRA by finding that a contract had been concluded that incorporated express adjudication provisions, and questioned whether in any event a contract should be taken outside the scope of s.107 just because it was varied orally. He held that it was sufficient for the claimant to set out in the notice of adjudication "a dispute as to whether [the defendant] was in law liable to it for the deficiencies alleged" without indicating upon what legal foundation the liability of the defendant might be said to rest. He consequently also held that the adjudicator answered the question as it was formulated to him, and that he addressed the correct principles of law in his decision. On the issue of fairness, the judge concluded that the defendant's objection was one of form ("the ACE Procedure, if operated in accordance with its express terms, could be operated unfairly"), rather than of substance ("the adjudicator did in fact have regard to evidence given on behalf of the claimant of which the defendant was unaware or which it did not have an opportunity to answer"), and therefore he rejected it.