Fastrack Contractors Ltd -v- (1) Morrison Construction Ltd (2) Imreglio UK Ltd
The 'dispute' which could be referred to adjudication was all or part of whatever was in dispute when the referring party first intimated an adjudication reference, including more than one claim
4 January, 2000
The adjudication was based on the sub-contractor's interim payment application, although the sum claimed was appreciably higher than the gross sum forming that application. The contractor contended that there was no current dispute which could be referred to adjudication with the result that the adjudicator lacked the jurisdiction to determine the suggested dispute. Judge Thornton held that although the Construction Act 1996 referred to a ?dispute? rather than ?disputes? being referred to adjudication, when a dispute arose it might cover one or more of the many claims, heads of claim, issues, contentions and causes of action which arose during the course of a construction contract (some of which would be disputed collectively or individually). It was a question of fact as to what was in dispute when it arose with the result that the ?dispute? which could be referred to adjudication was all or part of whatever was in dispute when the referring party first intimated an adjudication reference, ie whatever claims, heads of claim, issues, contentions or causes of action were then in dispute which the referring party chose to crystallise into an adjudication reference. Only a ?dispute? could be referred to adjudication (rather than ?most of a dispute? or 'substantially the same dispute?). This meant that if two or more disputes were sought to be referred, each had to be the subject of a separate reference although the adjudicator nominating body could decide whether it was appropriate to appoint the same or different adjudicators. Also whilst a referring party might decide to cut out some of the pre-existing matters in dispute and to confine the referred dispute to something less than the totality of the matter then in dispute provided that such a ?pruning? exercise did not transform the pre-existing dispute into a different dispute, he could not unilaterally tag onto the existing range of matters in dispute a further list of matters not yet in dispute and then seek to argue that the resulting ?dispute? was substantially the same as the pre-existing dispute. Advice Note Judge Thornton held that the decision should be enforced because the additional elements added by the referral notice were no more than additions to the sub-contractor's primary case. However, the courts will look closely at whether what is actually claimed in the adjudication is substantially the same as what was referred.