ADJUDICATION, APPROBATION AND REPROBATION

In Nickleby FM Ltd v Somerfield Stores Ltd [2010] EWHC 1976 (TCC), [2010] All ER (D) 07 (Aug) Mr Justice Akenhead dismissed a challenge to the jurisdiction of an adjudicator. The challenge was made principally on the basis that the claimant had advanced its case before the court on a different basis to that which had been advanced before the adjudicator. In rejecting the challenge he held that the claimant had not advanced a case on jurisdiction which was materially or prejudicially different from that which it had advanced in the adjudication. In so concluding he doubted whether the principle of election (or of approbation and reprobation) could properly be applied to prevent the claimant from enforcing the decision of the adjudicator.

The facts

The defendant, Somerfield Stores Ltd, entered into a contract with the claimant, Nickleby FM Ltd, under which the claimant agreed to provide the defendant with management services in connection with the maintenance of many of its supermarkets in the UK. The contract contained a ‘Shared Gain Scheme’ (and which was referred to by the parties as ‘Gain Share’) which provided encouragement to the parties to make effective proposals for savings on both capital and revenue expenditure. If the savings were achieved, the claimant was entitled to 20% and 15% respectively for savings which were the result of its initiative or the initiative of the defendant.