Witney Town Council V Beam Construction (Cheltenham) Ltd
Technology and Construction Court
12 September 2011
A dispute arose generally when and in circumstances in which a claim or assertion was made by one party and expressly or implicitly challenged or not accepted. A dispute in existence at one time could in time metamorphose in to something different to that which it was originally. Whilst a dispute could comprise a single issue or any number of issues within it, it did not necessarily comprise everything in issue between the parties at the time that one party initiates adjudication and everything in issue at that time did not necessarily comprise one dispute, although it might do so. A particular dispute (like a snowball rolling downhill gathering snow as it went) might attract more issues and nuances as time went on. Alternatively there might (like the proverbial rolling stone gathering no moss) be a dispute which remained the same and unaffected by later events, such as a dispute as to responsibility for a site accident.
Whilst what a dispute was in any given case was a question of fact, the facts might require to be interpreted. Courts should not adopt an over legalistic analysis of what the dispute was bearing in mind that almost every construction contract was a commercial transaction and parties could not broadly have contemplated that every issue between them would necessarily have to attract a separate reference to adjudication. The notice of adjudication and the referral notice were not necessarily determinative of what the true dispute was or whether there was more than one dispute since the background facts were also to be looked at. Where there were two separate and distinct disputes, only one could be referred to one adjudicator unless the parties agree otherwise and an adjudicator who had two disputes referred to him did not have jurisdiction to deal with them both. Whether there were one or more disputes involved a consideration of the facts so that if there was a clear link between two or more arguably separate claims or assertions, that might well point to there being one dispute. A useful if not invariable rule of thumb was that if one disputed claim could not be decided without deciding all or parts of another disputed claim, that established such a clear link and pointed to there being only one dispute.