Bovis engaged Cofely as a sub-contractor, based on a DOM/2 form, to carry out and complete mechanical and public health works, on the new Civil Justice Centre in Manchester. There had previously been 4 adjudications under this sub-contract, all referred by Cofely to the same adjudicator, who was appointed by the RICS. In Adjudication 2 the adjudicator had given a decision as to his jurisdiction.

Cofely referred Adjudication 5 in the same way, following which Bovis attempted to commence a separate adjudication. Bovis had referred Adjudication 6 to a separate adjudicator. As the subject matter of Adjudications 5 and 6 were ostensibly the same, the principle question before HHJ Coulson was which adjudicator had the necessary jurisdiction to deal with the new dispute. Within that principle question, the Judge identified four separate issues he had to answer:

1 What was the proper construction of the sub-contract, and consequently which adjudicator had jurisdiction?
2 If, contrary to the parties' primary submissions, there was no enforceable express agreement, would the Scheme apply instead?
3 Whether, following the four previous adjudications, Bovis was estopped from challenging the jurisdiction of the adjudicator to deal with Adjudication 5?
4 Was the adjudicator's decision in Adjudication 2 binding as to his jurisdiction, and was it binding on the parties at the time of the commencement of Adjudication 5?

Bovis relied on Part 1 of the Contract Appendix which included a provision that stated stated, in manuscript, that Mr Rob Smith was to be the nominated adjudicator, or if he were unwilling or unable to act, such other partner of Davis Langdon as the he would nominate. Further, there were amendments to the adjudication provisions to the effect that a nomination of an adjudicator would only be valid once they had signed a JCT Adjudication Agreement.

Cofely, on the other hand, relied on Part 8 of the Appendix, which provided that RICS would be nominating body. This had also been amended in manuscript.

The Judge decided that Cofely's position was preferred. Firstly, the Appendix was the most important document. It was stated to be so in the subcontract itself, specifically in the DOM/2 conditions. Further:

"… it is the one document included in the Subcontract which the parties have filled out themselves. As noted above, where there is a clash between manuscript and standard printed words, the former must prevail."

Secondly, Bovis' position relied upon provisions relating to the main contract, which the Judge thought were entirely unsustainable.

The Judge also concluded that Part 1 of the Contract Appendix, that Bovis relied upon, which included the amendments relating to the JCT Adjudication Agreement, were imported directly from the main contract, and accordingly contained a number of irreconcilable difficulties. Part 8, that Cofely relied upon, was only relevant to the sub-contract. He decided that Bovis' interpretation couldn't possibly be correct if one looked at the issue from the point of view of commercial common sense. It would mean ignoring Part 8 of the Contract Appendix, which expressly dealt with adjudication under the sub-contract, and then embarking on a convoluted exercise of interpretation that could not possibly amount to a proper or sensible construction of the contract.

The Judge went on to say that if he was wrong on that point, then due to having two entirely conflicting routes to a nominating body, he could say with no certainty which one would apply. Accordingly, there would be no valid express agreement for adjudication and the Scheme would apply. This would have allowed Cofely to select the RICS as nominating body and, he concluded, pointed to the original adjudicator having jurisdiction in any event.

With regard to the adjudicator's decision in Adjudication 2, it would only apply where Bovis' contractual interpretation was correct, and in any event it could only be a binding decision as to his jurisdiction regarding the adjudication in which it was made, and not in relation to future adjudications.