McAlpine PPS Pipeline Systems Joint Venture V Transco plc
The nature of the contractor's case in its reply to the employer's response to its claim was such that the employer had a realistic prospect of arguing successfully that the adjudicator's decision did not respond to the dispute referred or was given on a dispute not referred
12 May, 2004
McALPINE PPS PIPELINE SYSTEMS JOINT VENTURE V TRANSCO PLC
Technology and Construction Court
His Honour Judge John Toulmin CMG QC
12 May 2004
The employer contended that the nature of the case advanced by the contractor in its reply to the employer's response to its interest claim (and allowed by the adjudicator) when compared with the dispute in this connection as described in the contractor's notice of referral was such that the employer had a realistic prospect of arguing successfully that adjudicator's decision awarding the contractor interest was not responsive to the dispute referred to him or was given on what amounted to a different dispute that had not been referred to him (with the result that the decision should not be enforced by the court).
Judge Toulmin agreed with this contention. The adjudicator was entitled to conclude that the dispute referred to him in the contractor's notice of adjudication was its claim for interest payments that should have been made automatically and that the basis of the claim was as set out in its referral notice, namely that payments in respect of various compensation events had not been certified when they out to have been. It was for the claimant to define the issues referred and that the adjudicator had no jurisdiction to vary the basis on which the reference was made in the absence of the parties' agreement. It was not enough for the adjudicator to say that the parties would have wanted the matter concluded on any basis other than that referred or subsequently agreed by the parties, namely the basis on which the contractor advanced its case in its reply to the employer's response.
The adjudicator had no jurisdiction to embark on a course of investigating the contractor's new case without the employer's agreement notwithstanding that he was entitled to take the view that the employer understood the nature of that new case given the past history of the case. The adjudicator's investigation of the contractor's new case and the introduction by the adjudicator and by the contractor of new evidence and issues went far beyond the adjudicator taking the initiative in ascertaining the facts and the law as he was entitled to do.
An adjudicator must be very careful that the dispute on which he gives his decision is the same as the dispute originally referred to him.