PARTY TO AN ADJUDICATION CANNOT BOTH APPROBATE AND REPROBATE THE ADJUDICATOR’s DECISION

Shimizu Europe Ltd v Automajor Limited (unreported, Technology and Construction Court, 17 January 2002)

In Shimizu Europe Ltd v Automajor Ltd (unreported, Technology and Construction Court, 17 January 2002) Judge Richard Seymour QC rejected a submission that any mistake whatsoever made by an adjudicator as to what he was supposed to decide or as to the basis upon which he was being asked to decide a question inevitably went to his jurisdiction and vitiated his determination. In his view, no such broad-ranging proposition could be found in the judgment of Lord Reid in Ballast plc v The Burrell Company (Construction Management) Ltd [2001] BLR 529 (above, p. 5). Perhaps more importantly, Judge Seymour concluded, obiter, that a party to an adjudication cannot simultaneously both approbate and reprobate the decision of an adjudicator. On the facts he held that the effect of inviting the adjudicator to correct an alleged error in his award was consistent only with the recognition of the validity of the award. This conclusion makes it necessary for the losing party to an adjudication to proceed with great care when communicating with the adjudicator after the award has been made.