Somerfield engaged Nickleby to provide management services in connection with maintenance at its supermarkets. The contract was entered into in May 2006 and was to run for three years with automatic termination without notice. The contract, by one means or another, was extended by a year. On 30 November 2009 Somerfield gave notice to take effect on 30 May 2010. That letter purported to record an arrangement regarding the management fee between 27 January 2010 and 30 May 2010, in which Somerfield made certain deductions. Nickleby accepted the notice as validly served, but denied there had been any such arrangement.

Nickleby commenced adjudication for two invoices relating to the management fee. Somerfield raised a jurisdictional objection on the grounds that there was no contract in writing regarding the terms pursuant to which the contract was extended. The adjudicator made a non-binding decision that he had jurisdiction to decide the adjudication as there had been a written offer to extend the contract, subject to a 14-week notice period, which was accepted by the parties’ conduct.

During enforcement Somerfield raised its jurisdictional objection again, but also argued that Nickleby was advancing a different case on enforcement than it had chosen to put forward during the adjudication. The judge rejected this argument and disagreed with the judgment in Redworth Construction Ltd v Brookdale Healthcare Ltd in which HHJ Havery QC said that a party to an adjudication cannot go “beyond matters it relied on in the adjudication… cannot blow hot and cold, or approbate and reprobate on its earlier argument.”

“[A]n adjudicator, who reaches what is expressed and accepted by him and the parties as a non-binding decision, has only enquired into his jurisdiction as he was entitled to do and it is primarily in the court that a binding decision can be given as to jurisdiction. I can not see that principles of election apply in these circumstances…. one needs to examine in any event with care whether a materially different case on jurisdiction is being mounted in the court proceedings compared with that raised before the adjudicator. It must also be relevant to consider whether at least in a clear case the adjudicator with the correct and full information before him would have reached the same conclusion that he did...”

The emails now relied upon by Nickleby were in relation to a gain share arrangement that was not in issue in the adjudication. Both parties accepted that, if the adjudicator had been provided with those emails, then he would have reached the conclusion that the ‘gain share’ arrangements were sufficiently evidenced in writing for the purposes of the Act. Also, the parties appeared to accept in their various pleaded documents that the contract had been extended. Therefore, the adjudicator had the necessary jurisdiction.