Science and Technology Facilities Council v MW High Tech Projects UK Ltd

[2015] EWHC 2889 (TCC)

If you have reserved your position as to jurisdiction, does the fact that you have paid the adjudicator’s fees mean that you are treating the adjudicator’s decision as binding and have waived or lost the right to maintain that objection? In the case here, the adjudicator’s terms and conditions said this:

“1. Each party to the reference shall be liable for my fees on a joint and several basis save that if, in my sole discretion, I consider that I have no jurisdiction to proceed with the reference my fees shall be payable solely by the Referring Party

. . .

3. My fees will be payable notwithstanding that my decision is subsequently found by a court to be unenforceable by reason of lack of jurisdiction.”

The Claimant here said that neither party had expressly accepted the adjudicator’s terms during the adjudication. Silence cannot amount to acceptance and so the terms and conditions were not agreed. Mr Justice Fraser noted that the agreement of the Defendant to the adjudicator was done following a full reservation of right. Further, it is possible to signify acceptance of proposed contract terms by conduct and this is what the Defendant did.

Whilst there are cases where, by paying the adjudicator’s fees, a party has lost the right to object to a decision, this was not the case here. Taken together, the express terms of the letter reserving the Defendant’s rights and clause 3 of the adjudicator’s terms and conditions were “compelling” evidence to allow the Defendant to challenge jurisdiction on enforcement, regardless of the payment by the Defendant of the adjudicator’s fees.

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