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When a party seeks declarations in an adjudication

The judgment in WW Gear v McGee Group (and Jon’s subsequent post on it) got me thinking beyond using CPR Part 8 in adjudication and more generally about the meaning of declaratory relief. In my experience, most adjudications are about money allegedly due from one party to the other and so I wondered how often a party seeks declarations from the adjudicator.

Declaratory relief

Part 8 describes itself as an “alternative procedure” for situations when the court’s decision is required “on a question which is unlikely to involve a substantial dispute of fact”. The TCC guide refers to Part 8 in the context of interpreting a statute or construing a contract. It suggests that as the “relevant primary facts are often not in dispute”, such claims can generally be dealt with by “written evidence and oral submissions”. It then goes on (in section 9) to discuss declaratory relief in the context of adjudication business, suggesting it is appropriate to deal with issues such as:

Declaratory relief in adjudication

There is no reason why an adjudicator cannot be asked to determine issues such as the meaning of a contract term, or even something more complex, such as when practical completion was actually achieved. However, many of the issues identified in section 9 of the TCC Guide go to the adjudicator’s jurisdiction and we all know that he cannot deal with that question and give a binding decision, unless both parties agree that he can. In those circumstances, it may be sensible for the court to deal with the question.

I think there are similarities between declaratory relief applications and adjudication. After all, adjudicators often deal with quite complex issues entirely on written evidence alone. Not every adjudication merits a hearing with the parties, let alone oral evidence from witnesses or experts. Some may not consider that the adjudicator is granting a party declaratory relief, and it certainly isn’t called that, but parallels can be drawn.

Back to WW Gear

In WW Gear, McGee sought a declaration about the meaning of a contractual provision. It’s easy to see from the judgment that if the court had granted the relief it sought, it may have entirely undermined WW Gear’s claim. It is arguable that McGee could have asked the adjudicator the same question, to be dealt with like a preliminary issue. However, that may not have been acceptable to WW Gear either. As Jon speculated, it is also understandable why WW Gear may not have agreed to the adjudication being stayed while the court considered the issue.

2 thoughts on “When a party seeks declarations in an adjudication

  1. As an Adjudicator I have been asked & given a declaratory decision on the correct meaning of a fire insurance contract clause after the houses were burnt down by arson. I had also to consider other related contract clauses. I dealt with the dispute by way of written submissions, case law referred to me & written arguments on the construction of the clauses. No payments were sought.

  2. Going one stage further, we have recently acted for a claimant in 2 adjudications where we sought declarations that a contractor was obliged to disclose certain documents under clauses in a standard building contract and a related agreement; plus consequential orders for actual disclosure of those documents. The orders were made, though not in relation to all documents sought.

    There is some authority for this sort of order. In Multiplex Constructions (UK) Ltd v Mott MacDonald Limited (110 Con LR 3, 2007) the Technology and Construction Court seemed to proceed on the assumption that there was no reason why an adjudicator could not make a declaration and an order that that documents be disclosed – although in that case the court did not feel able to enforce the adjudicator’s orders on the facts.

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