Adjudication and Multiple Disputes

The Scheme for Construction Contracts (England and Wales) Regulations 1998 makes clear that an Adjudicator can only deal with one dispute at any one time. Of course, it is open to the parties to agree differently but it is a rare occurrence when parties actually co-operate with each other, let alone the Adjudicator, in an adjudication.
 
 
The Scheme for Construction Contracts (England and Wales) Regulations 1998 makes clear that an Adjudicator can only deal with one dispute at any one time. Of course, it is open to the parties to agree differently but it is a rare occurrence when parties actually co-operate with each other, let alone the Adjudicator, in an adjudication.
 

So what does one dispute mean? A dispute over the value of a sum due in an interim valuation may involve an Adjudicator looking at multiple items or issues. If they all relate to what sum may or may not be due, there is only one dispute. This view was confirmed in the case of Fastrack Construction Ltd v Morrison Ltd (1) and Imreglio UK Ltd (2) 2000 in which Judge Thornton said “the dispute is whatever claims, heads of claim, issues, contentions or causes of action are then in dispute which the referring party has chosen to crystallise into an adjudication reference”.

 

This principle was addressed again in the Court of Appeal case of Bothma v Mayhaven Healthcare Limited 2007. In this case Bothma identified four disputes in its Notice of Adjudication, namely a) the date for completion of the contract, b) the scope and validity of the Architect’s Instructions, c) the issue and non-withdrawal of the Notice of Non-Completion and d) the sum due under valuation 9. Although Bothma obtained a decision in respect of all four issues, Mayhaven refused to pay, arguing that the Adjudicator had decided more than one dispute without Mayhaven’s agreement to do so. At an enforcement hearing in the TCC, His Honour Judge Havelock-Allan QC decided that the Adjudicator never had jurisdiction to deal with more than one dispute.

 

HHJ Havelock-Allan said “...Any successful challenge to the issue of the certificate of non-completion in the adjudication would have been, and indeed was, of no monetary consequence to the sum awarded under valuation 9. ...”

 

Later on the judge went on to say “... If the sums claimed in valuation 9 were liable to alter by reference to either the original completion date or the extension, then I can see the force of the argument that the extension issue and the completion date issue was all part of the financial claim, the single dispute as to what sum is due to be paid under valuation 9. However, on the facts here, that was not the case, and so in truth there were two independent disputes which the adjudicator entertained”...

 

As a consequence of the enforcement proceedings failing, Bothma decided to seek permission to appeal. In a short judgement, permission to appeal was refused with the CA finding evidence that there were two clear and unrelated disputes that had been decided by the Adjudicator without the agreement of Mayhaven.

 

From these two judgements it is clear that disputes involving more than one issue can be decided by an Adjudicator provided all the issues expressly referred to the Adjudicator are linked to the dispute. If there is any suggestion of there being more than one dispute it would seem a matter of common sense to issue separate sets of adjudication proceedings and seek agreement from the Responding Party to combine the proceedings. If permission is refused, at least the resulting decisions can still be enforced.


Peter Vinden is a practising adjudicator, mediator, expert and conciliator. He is Managing Director of Vinden and can be contacted by email at pvinden@vinden.co.uk