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This case concerned an application for summary judgment sought by MHL (the “Claimant”), a construction and civil engineering company, to enforce an adjudicator’s decision of 31 October 2023 (the “Decision”) requiring LJJ (the “Defendant”), a specialist mechanical and engineering contractor, to pay a specified sum.
The Claimant engaged the Defendant to carry out MEP installation work pursuant to an amended JCT 2016 Design and Build Subcontract dated 7 May 2021 (the “Subcontract”). A dispute arose between the parties over the Defendant failing to meet the key dates under the Subcontract which was referred to adjudication. The adjudicator decided that the Defendant was liable to pay the Claimant the sum of £808,000.
In a covering email of 31 October 2023, the adjudicator provided the Decision and asked, pursuant to his power to revise a decision under paragraph 22A (1) of the Scheme for Construction Contracts 1998, that the parties notify him of any “clerical or typographical errors”. The Defendant’s solicitors wrote in response to the adjudicator, setting out detailed comments which would be properly described as submissions.
On 4 November 2023, the adjudicator issued an amended decision under the slip rule (the “Revised Decision”). In order to avoid double recovery, the adjudicator amended paragraph 138 of the Decision in order to clarify that “if not already allowed” the sum owed by the Defendant must be paid to the Claimant within 7 days.
This payment was not received, and the Claimant sought summary judgment to enforce the Decision on the grounds that it was not superseded by the Revised Decision as the adjudicator had exceeded the scope of his power under the slip rule. The Defendant resisted enforcement of the Decision on a number of grounds, the principal of which being (i) that the Decision was superseded by the Revised Decision (“Ground 1”); and (ii) that the adjudicator’s error in issuing the Revised Decision was within his jurisdiction, therefore the court should not interfere (“Ground 2”).
Ground 1 Decision
In relation to Ground 1, the Defendant submitted that the Decision could not be enforced as it had been superseded by the Revised Decision. The judge considered if the Revised Decision consisted of the correction of “a clerical error”. Upon consideration of the dictionary definition of a “clerical error” and the considerations of Mr Roger ter Haar KC in Axis M&E UK Limited v Multiplex Construction Europe Limited [2019] EWHC 169 (TCC), the judge found that there had been no relevant clerical or typographical error here. Rather, following the further detailed submissions by the Defendant, the adjudicator concluded that there was a matter of substance which was not addressed within the Decision. Such a correction would take the adjudicator beyond the scope of his power to correct under paragraph 22A (1). The Revised Decision therefore did not supersede the Decision and the judge found that the Defendant’s first ground to resist enforcement had failed.
Ground 2 Decision
In relation to Ground 2, the Defended sought to rely on observations of Ramsey J in O’Donnell Developments Limited v Build Ability Limited [2009] EWHC 3388 (TCC) [35] to submit that the court should not intervene as the adjudicator was asked to correct a slip and he was within his jurisdiction to exercise the slip rule in order to do so. The court held that the reasoning in O’Donnell was not binding, and that it was clear that the line between exercising a wrong jurisdiction which does not exist and exercising a jurisdiction which does exist, wrongly is difficult. Each case therefore has to be considered on its facts.
The judge did, however, find that he was bound by the decision in Lesotho Highlands Development Authority v Impregilo SpA [2006] 1 A.C. 221 to “focus intensely on the particular power”, the power in question being the one to correct clerical and typographical errors pursuant paragraph 22A (1). On application of this intense focus on the power, the judge found that the adjudicator was qualifying and clarifying the Decision in light of further submissions. This was not a case of the adjudicator erroneously applying a power to issue the Revised Decision, he was purporting to exercise a power which he did not possess. Therefore, the Defendant’s second ground to resist enforcement also failed.
This decision also provides helpful guidance on what is within the scope of an adjudicator’s power for parties who are seeking a correction to an adjudicator’s decision.