Redwing Construction Ltd V Wishart

Propositions to determine whether an adjudicator's reasoning in his decision was binding on another adjudicator in a subsequent adjudication applied
 

 

REDWING CONSTRUCTION LTD V WISHART
Technology and Construction Court
Akenhead J
22 December 2010
 
Akenhead J set out the following propositions. It was necessary to determine (i) What dispute was referred in the first or earlier adjudication, which might be wide or narrow and (ii) Whether and to what extent the parties gave the adjudicator in the first adjudication jurisdiction to address matters not obviously within the ambit of the referred dispute (for example a legitimate defence to the referred claim not raised before the referral). It was necessary to examine (i) What the adjudicator decided in relation to the referred dispute and any arguable defence put up and (ii) Whether the adjudicator purported to decide something not referred or not within his jurisdiction. Any decision which could be described as deciding the dispute, as referred or as expanded effectively within the adjudication process, was binding and could not be raised or adjudicated on again in any later adjudication. Any decision or part of a decision which could be described as not deciding the dispute, as referred or as expanded effectively within the adjudication process, was not binding and could be raised or adjudicated on again in any later adjudication. Where an adjudicator offered an obiter opinion on a point or topic not part of the dispute for which he had jurisdiction, that opinion was not jurisdictionally part of his decision.
 
Akenhead J applied the above propositions in holding that the adjudicator’s reasoning in the first adjudication about how the contract fee should be calculated was in some material way a critical part of his decision which underpinned or supported his finding about the weekly rate or the period to which it related. The adjudicator’s finding of "fact" that the parties did not intend to adjust the contract fee was immaterial and not a legitimate finding to make given that the parties had not produced any evidence one way or the other about their intention. The adjudicator’s direction payment of what he decided was due, namely extended time multiplied by the contract fee rate precluded payment in respect of any adjustment of that rate was wholly unjustified given that neither party had brought any issue about this before him. The adjudicator had no jurisdiction to make any of these findings let alone make a direction which neither party was seeking. More importantly this whole section of his decision was simply tangential and, in court terms, obiter to what he was required to and in fact did decide on the disputes actually referred to him.

 
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