Five Practice Points We Have Learnt About Adjudication In The Last Six Months

This twenty-sixth issue of Insight looks at five key adjudication decisions that have been handed down by the courts over the past six months that have considered, amongst other issues, (i) running multiple disputes, (ii) resisting enforcement, (iii) resisting payment and (iv) having more than one bite of the cherry.

What can we learn from them in practice?

Running multiple disputes Can you serve numerous Notices of Adjudication at the same time for determination by the same adjudicator? Willmott Dixon Housing Ltd (formerly Inspace Partnerships Ltd) v Newlon Housing Trust [2013] EWHC 798 (TCC)

In a non-Scheme adjudication, yes.

The decision

In this case, Newlon maintained that referring two adjudications simultaneously was contrary to section 108 of the HGCRA (and also the CIC Rules which applied here), which only allows adjudicators to determine one dispute at any one time.

Newlon's argument was rejected by Mr Justice Ramsey who held that there is nothing under the HGCRA that precludes a party from serving more than one Notice of Adjudication, each relating to a different dispute, and then referring each adjudication to the same adjudicator. This is because section 108(2)(a) of the HGCRA provides parties with the right to adjudicate "at any time".

Practice point

This is only a first instance decision and it is not therefore binding authority, but it seems to suggest that non- Scheme adjudications can be referred to adjudication simultaneously, provided there is nothing preventing the presentation of more than one dispute in any other adjudication rules that might govern the dispute.

Resisting enforcement Can you resist enforcement on the basis that the adjudicator considered a contract clause the parties did not refer to? ABB Ltd v BAM Nuttall Ltd [2013] EWHC 1983 (TCC)

Yes.

The decision

In ABB, it was common ground that the adjudicator had referred to a particular clause of the contract in his decision, which had not been raised by the parties, and which he did not refer to the parties prior to issuing his decision.

The parties (and ultimately the courts) must have confidence in the fairness of the adjudicator's decision-making process. It is perfectly legitimate for an adjudicator to raise new points with the parties and invite comment, argument or even evidence, but only when he has done so may he rely on that point in reaching his decision. If the issue is an important one and the adjudicator does not refer it to the parties prior to...