Bothma v Mayhaven Healthcare Ltd

The contractor should not have permission to appeal against the refusal of the judge at first instance to enforce the adjudicator's decision in its favour on the ground that it had referred four separate disputes to adjudication without having obtained the employer's consent
 
BOTHMA v MAYHAVEN HEALTHCARE LTD
 
Court of Appeal
Waller and Dyson LJJ
14 May 2007
 
The contractor applied for permission to appeal against the refusal of the judge at first instance to enforce the adjudicator's decision in its favour on the ground that it had referred four separate disputes to adjudication without having obtained the employer's consent in accordance with paragraph 8(1) of the Scheme for Construction Contracts, which provides that the adjudicator with the parties' consent may adjudicate at the same time on more than one dispute.
 
The contractor's notice of adjudication identified the following disputes (i) the date for completion (ii) the scope and validity of architect's instructions (iii) the issue and non-withdrawal of the notice of completion and (iv) the sum properly payable under a valuation. The adjudicator made a decision in the contractor's favour in respect of these disputes. One item in the valuation was for the cost of a kitchen portakabin for a specified number of weeks. It was common ground that the portakabin was hired by the contractor for the employer's use in relation to kitchen work which would not be finished until completion by the contractor of its works and that the employer did reimburse the hire cost without dispute.
 
The Court of Appeal refused to give permission to appeal. Dyson LJ stated that it was wholly artificial to say that the inclusion in the valuation of the portakabin item afforded the necessary link between the valuation dispute and the time related disputes. Dyson LJ also rejected the contractor's contention that the adjudicator should have undertaken the inquisitorial role of examining not only the portakabin item but also the valuation generally to see whether there were any time related items in it which, if disputed, should have led him to appreciate that at least a part of the valuation dispute was time related because (i) whilst the adjudicator might in some circumstances have to perform an inquisitorial role, the dispute in the first instance was defined by what was referred to in the notice of adjudication (ii) the relevant dispute was confined to valuing the relevant parts of the valuation and (iii) no claims were identified in the valuation during the course of the adjudication which had any time implications.
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