Dalkia engaged WSP under a consultancy agreement (“Consultancy Agreement”). The HGCRA did not apply but the Consultancy Agreement incorporated the NEC3 Professional Services Contract which contained adjudication provisions.

Dalkia terminated the Agreement after two years and WSP issued its final account seeking payment of compensation events and loss and expense. Following Dalkia’s failure to respond, WSP referred the matter to adjudication seeking declarations on the effect of the Consultancy Agreement’s compensation events provisions on its right to refer the matter to adjudication. The adjudicator decided that WSP had a right to refer the matter to adjudication due to Dalkia’s failure to respond to the loss and expense claim within time.

The parties subsequently entered into a consent agreement (“Consent Agreement”) which was aimed at resolving the dispute. The Consent Agreement included (i) a right to refer outstanding matters to adjudication and (ii) was subject to the exclusive jurisdiction of the adjudicator, whose decision was final and binding until revised by the court.

WSP subsequently referred its final account dispute to adjudication. Dalkia argued that (i) WSP was seeking to re-open issues which it was time-barred from doing under the Consultancy Agreement and (ii) that the adjudicator did not have jurisdiction to deal with the dispute. WSP argued that the adjudicator did have jurisdiction, relying upon the terms of the Consent Agreement.

The adjudicator decided that he did have jurisdiction under the terms of the Consent Agreement and awarded £1m to WSP. Dalkia issued a Notice of Dissatisfaction in accordance with the Consultancy Agreement and WSP commenced enforcement proceedings.

The Court enforced the decision, holding that the Consent Agreement varied the terms of the Consultancy Agreement and gave the adjudicator jurisdiction to decide his own jurisdiction.

Obiter, the Court also found that:

(i) there had been an ad hoc agreement giving the adjudicator jurisdiction;
(ii) if the parties had not entered into the Consent Agreement, WSP would have been time-barred from referring certain parts of the dispute to adjudication under the NEC3 dispute resolution procedure; and
(iii) if the Court had determined that the claims for compensation events should not have been referred to adjudication, the decision would have been severed.