Pring & St Hill Ltd V Hafner
Technology and Construction Court
His Honour Judge Humphrey LLoyd QC
31 July 2002
The sub-contractor terminated the sub-sub-contract. There were four adjudications in which the same adjudicator acted which were all concerned with the same project. Three of the adjudications concerned alleged damage to the works. The contractor brought an adjudication against the sub-contractor and the sub-contractor brought two adjudications against the sub-sub-contractor in this connection. The sub-sub-contractor objected to his acting on the ground that the sub-sub-contractor had not given its consent under paragraph 8(2) of the Scheme for Construction Contracts. Paragraph 8(2) provided that the adjudicator could, with the consent to all parties to those disputes, adjudicate at the same time on related disputes under different contracts whether or not one or more of those parties was a party to those disputes.
The adjudicator found in favour of the sub-contractor and ordered that the sub-sub-contractor should pay a specified sum in respect of the damage to the works which reflected the sum he awarded in the contractor’s favour against the sub-contractor in the first adjudication. The sub-contractor contended that paragraph 8(2) had no application on the grounds that (1) it was directed solely to an adjudicator conducting two or more adjudications “at the same time”, ie in a consolidated manner and (2) the adjudicator would only need the parties’ consent before he could physically bring the parties together at a meeting and in investigations or could make a single decision covering the disputes arising out of the two contracts.
In the court enforcement proceedings brought by the sub-contractor Judge LLoyd rejected these contentions. The judge held that the adjudicator’s refusal to resign from the adjudications meant that the adjudicator had proceeded without jurisdiction. This was on the basis that (1) paragraph 8(2) conferred on the parties the right to refuse consent to an adjudicator adjudicating at the same time on related disputes under different contracts (2) in the absence of such consent the parties’ rights had to be upheld as a matter of law and (3) the provisions of the Scheme had to be enforced as a matter of contract.
The courts will enforce paragraph 8(2) of the Scheme for Construction Contracts strictly. The mere fact that the adjudications complained did not take place “at the same time” does not mean that paragraph 8(2) will not apply to them.