How many??

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How many??

September, 2013
John Riches

The Brothers Grimm collection of Fairy Tales includes a tale about a tailor with “seven with one blow” embroidered on his belt, to explain that he had killed several flies with one stroke when they attacked his jam. This embroidery was later mistaken by a giant to signify his killing prowess, resulting ultimately (with some cunning trickery) in the giants all fleeing in fear of the tailor. In adjudication, however, the magic number is more than one, not seven and it is disputes, rather than flies or giants, which are (in my experience) the more standard subject of matter of adjudication!

What is the single dispute is well rehearsed in the case law.

The broad definition of a single dispute habitually used by the courts is that of HHJ Thornton QC in Fastrack Contractors Limited v. Morrison Construction Limited [2000] BLR 168 in these terms:

"During the course of a construction contract many claims, heads of claim, issues, contentions and causes of action will arise. Many of these will be, collectively or individually, disputed. When a dispute arises, it may cover one, several or many of one, some or all of these matters. At any particular moment in time it will be a question of fact what is in dispute. Thus, the ‘dispute’ which may be referred to adjudication is all or part of whatever is in dispute at the moment that the referring party first intimates an adjudication reference. In other words, the ‘dispute’ is whatever claims, heads of claim, issues, contentions or causes of action that are then in dispute which the referring party has chosen to crystallise into an adjudication reference."

That passage has been approved in a number of subsequent cases and remains a good starting point on what constitutes a single dispute. A single dispute question such as ‘how much I am entitled to’ may embrace a number of issues and sub issues and sub disputes. It could cover how much of the work has been done to date, what the variations were to date, what extension of time am I entitled to and what is the loss and expense to date worth.

It is very clear from the case law that adjudication is a single dispute process. This has been restated most clearly in TSG Building Services PLC v South Anglia Housing Ltd [2013] EWHC 1151 (TCC) (08 May 2013).

Judging by the extensive case law, determining what a single dispute is, is not an easy question. Let’s just say we are bright enough to realise that, simultaneously, we really do have two disputes which require resolution. Two things are almost a given :

  • First, it’s obvious we want the same Adjudicator; iIt is more economical for one Adjudicator to familiarise himself with the contract and get a feel for the whole thing across the two disputes.
  • Secondly, we do not want to waste two months dealing with these disputes sequentially; parties want answers on both disputes at once; the whole concept of Adjudication is that it is quick, after all.

So what should we do?

Well don’t try to adjudicate simultaneously under the Scheme for Construction Contracts (England and Wales) Regulations 1998 or Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011. Both Schemes have a provision in Part I at paragraph 8.

8. - (1) The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on more than one dispute under the same contract.

(2) The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on related disputes under different contracts, whether or not one or more of those parties is a party to those disputes.

(3) All the parties in paragraphs (1) and (2) respectively may agree to extend the period within which the adjudicator may reach a decision in relation to all or any of these disputes.

Paragraph 8 is permissive, it allows the adjudicator with the consent of the parties, to adjudicate at the same time on more than one dispute. At least one party (the referring party) is likely to find this idea appealing when he has two disputes which he wants sized up at the same time by the same adjudicator.

However, this provision is a bit naughty; the emphasis is upon the adjudicator securing the consent of the parties because he cannot proceed on both disputes without it. In reality a referring party can be irresponsible, realise there are two disputes, realise that these could be stopped but still chance referring both at once on the basis that there may not be an objection during the currency of the Adjudication.

The Adjudicator has to then face the music and in all probability his only course is to resign (see Pring & St Hill Ltd v C J Hafner (t/a Southern Erectors) [2002] EWHC 1775 (TCC) – which seems to be the only case that deals directly with paragraph 8 of the Scheme for Construction Contracts (England and Wales) Regulations 1998).

What has been achieved in all of this? Those of us who were involved directly with the revisions to the legislation for Local Democracy, Economic Development and Construction Act 2009 and particularly the Scheme for Construction Contracts (England and Wales) Regulations 1998 put forward a case to scrap paragraph 8 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 for the new version. That proposal was lost along the way.

If you want to play two disputes at once with the same Adjudicator choose a set of rules that do not contain the restriction in the Scheme for Construction Contracts (England and Wales) Regulations 1998 in paragraph 8. The rules need only be silent on the matter and you are in with a good chance of playing the two disputes at once game.

The issue of multiple disputes being referred to the same Adjudicator was examined again in Willmott Dixon Housing Limited (formerly Inspace Partnerships Limited v Newlon Housing Trust [2013] EWHC 798. Mr Justice Ramsey examined the Model Adjudication Procedure published by the Construction Industry Council (“CIC Rules”) and said:

“There is nothing in section 108 of the 1996 Act or in the Rules which prevents a party from giving more than one notice of adjudication, each relating to one dispute and then referring each adjudication to an adjudicator. Equally, there is nothing in those provisions to limit the time at which two or more adjudications can be commenced. They might be commenced at the same time or one before the other. The adjudication procedure might last for different periods so that the adjudications might overlap in time. There is nothing to prevent that and indeed, quite the contrary, because a party has the right to give notice of adjudication “at any time” under Section 108(2)(a) this makes it plain that there is no limit on the time when a party can commence one or more adjudications.

I consider that a party must be able to start a number of adjudications, each for a single dispute, at the same time or over the same period in order to comply with s.108(2)(a). If a party can commence multiple adjudications there is nothing to prevent the same adjudicator from being appointed in a number of those adjudications. For instance, the parties may, in their contract, agree the person who is to act as adjudicator. They may, as here, agree that a third party appoints the adjudicator without the right to challenge that appointment. I do not consider that the appointment of the same adjudicator is an objectionable as being contrary to the 1996 Act, the CIC Rules or any requirement of the Contract. In the absence of any such provision, I do not consider that it can give raise to any right to object to the jurisdiction of the adjudicator.”

The Housing Grants, Construction and Regeneration Act 1996 and its successor the Local Democracy, Economic Development and Construction Act 2009 do not contain the restriction in paragraph 8 of the Scheme for Construction Contracts (England and Wales) Regulations 1998. The CIC rules do not contain the restriction of paragraph 8 of the Scheme for Construction Contracts (England and Wales) Regulations 1998. In particular Mr Justice Ramsay said of the CIC Rules;

“In this case I have not needed to decide whether the references in rule 8 to “a dispute” or “the dispute” limited the parties in this case to referring one dispute. However, given the wording of rule 36 which refers to the Adjudicator being appointed “to determine the dispute or disputes between the Parties”, I would have held that the reference to “a dispute” or “the dispute” in rule 8 was a generic reference which was not intended to limit the number of disputes which could be referred to adjudication by a Notice. Contrary to Mr Hickey’s submission I do not consider that the reference to “disputes” in rule 36 cannot properly be construed as being limited to cases of joinder of third parties under rule 22. If it had been necessary, I would have based my decision on this.

When read in context, statements that an adjudicator has no jurisdiction to determine more than one dispute at the same time are all references to cases where a party has commenced one adjudication and has sought to refer more than one dispute to adjudication in that adjudication. They are not concerned with cases where a party has commenced more than one adjudication each dealing with a single dispute and then the agreed mechanism of appointment of an adjudicator has led to those two adjudications being dealt with by the same adjudicator. Such a process is consistent with and not contrary to section 108 of the 1996 Act nor to the CIC rules nor to any other principle.”

There were other interesting aspects of this case concerning the Referral itself. It is worth a read.

So what lessons have we learned?

  • First if you want to do multi Adjudications avoid the Scheme for Construction Contracts (England and Wales) Regulations 1998 like the plague.
  • Second, there is nothing in the Act itself which prevents multiple adjudications with the same Adjudicator, all the Act prevents is more than one dispute in a single adjudication. Unless the Rules have a restriction it is permissible to commence any number of Adjudications all referred to the same Adjudicator.

Which brings us back to that clever tailor. What I suggest is not quite cunning trickery, but it might at least have the giants running for the hills…

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