HG Construction Ltd v Ashwell Homes (East Anglia) Ltd

The effect of clause 39A.7.1 of JCT 98 With Contractor's Design with regard to the adjudication's position in relation to dealing with an adjudication where the dispute was the same or substantially the same as a dispute in a previous adjudication
 
HG CONSTRUCTION LTD v ASHWELL HOMES (EAST ANGLIA) LTD

Technology and Construction Court
Ramsey J
1 February 2007
 
Clause 39A.7.1 of JCT 98 With Contractor's Design provides that an adjudicator's decision is binding until finally determined by court or arbitration proceedings or by agreement. It does not expressly deal with the adjudication's position in relation to dealing with an adjudication where a (subsequent) dispute is the same or substantially the same as a dispute in a previous adjudication between the same parties under the same contract. The question of how in this situation (where the JCT adjudication procedure applies) the adjudicator in the subsequent adjudication should deal with this issue was explored by Ramsey J in this case. He stated that the position could be summarised as set out below.
 
(1) The parties were bound by the adjudicator's decision on a dispute until it was finally determined by court or adjudication proceedings or by agreement between the parties. (2) The parties could not seek a further decision by an adjudicator on a dispute or difference if that dispute or difference had already been the subject of an adjudicator's decision. (3) As a matter of practice the adjudicator (a) should consider (based either on an objection raised by one of the parties or on his own volition) whether he was being asked to decide a matter on which there was already a binding decision by another adjudicator and (b) if he decided that he was being asked to decide such a matter should (i) decline to decide that matter or resign if that was the only matter which he was asked to decide. (4) In considering the terms, scope and extent of (a) the dispute, the approach had to be to ask whether the dispute or difference was the same or substantially the same as the relevant dispute and (b) the decision, the approach has to be to ask whether the adjudicator decided a dispute that was the same or fundamentally or substantially the same as the relevant dispute. (5) The reasons why these approaches involved considering whether the dispute was the same or substantially the same were as follows (a) disputes encompassed a wide range of factual and legal issues and (b) if there had to be complete identity of factual and legal issues then the ability to "re-adjudicate" what was in substance the same dispute would deprive clause 39A.7.1 of its intended purpose.
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