ADJUDICATOR NOT ENTITLED TO DETERMINE A MATTER IN ADVANCE OF DECISION BY ARCHITECT

R Durtnell & Sons Ltd v Kaduna Ltd [2003] EWHC 517 (TCC); [2003] All ER (D) 281 (Mar)

In R Durtnell & Sons Ltd v Kaduna Ltd [2003] EWHC 517 (TCC); [2003] All ER (D) 281 (Mar) Judge Seymour QC held that an adjudicator had acted in excess of his jurisidiction in so far as he purported to decide that the claimants were entitled to an extension of time under the contract. The entitlement of the claimants to an extension of a time was a matter that, under the contract, was to be referred to the architect and the architect had not reached a decision at the point in time at which the adjudicator purported to decide the matter. It is not open to adjudicators to pre-empt the decisions of architects in this way. The formal reason for this is that, until the architect reaches his decision, there is no ‘dispute’ between the parties and nothing for the adjudicator to decide. Further, Judge Seymour decided that the defendants had not waived their entitlement to object to the lack of jurisdiction, nor were they prevented by the doctrine of approbation and reprobation from doing so.