Civil Engineering Reference
In-Depth Information
everything in issue at that time does not necessarily comprise one dispute, although it
may do so.
What a dispute in any given case is will be a question of fact albeit that the facts may
require to be interpreted. Courts should not adopt an over legalistic analysis of what
thedisputebetweenthepartiesis,bearinginmindthatalmosteveryconstructioncon-
tract is a commercial transaction and parties cannot broadly have contemplated that
every issue between the parties would necessarily have to attract a separate reference
to adjudication.
The Notice of Adjudication and the Referral Notice are not necessarily determinative
ofwhatthetruedisputeisorastowhetherthereismorethanonedispute.Onelooksat
them but also at the background facts.
Where on a proper analysis, there are two separate and distinct disputes, only one can
be referred to one adjudicator unless the parties agree otherwise. An adjudicator who
has two disputes referred to him or her does not have jurisdiction to deal with the two
disputes.
Whether there are one or more disputes again involves a consideration of the facts. It
maywell bethat, ifthere isaclear linkbetween twoormorearguablyseparate claims
orassertions, that may well point tothere being onedispute. Auseful ifnotinvariable
rule of thumb is that, if disputed claim No 1 cannot be decided without deciding all or
partsofdisputedclaimNo2,thatestablishessuchaclearlinkandpointstotherebeing
only one dispute.
iv
v
vi
vii
Problems sometimes arise when a contractor seeks adjudication to decide how much it
should be paid, but also how much extension of time it should have. Those are clearly two
unconnected disputes. However, if a contractor asks the adjudicator to decide how much
money it should be paid by the employer, that is one dispute even though the adjudicator
may have to decide not only how much should have been certified, but also the amount of
extensionoftimeinordertoseewhatamountofliquidated damagestheemployerwasjus-
tified in withholding. That is a fairly common example of the principle in the court's 'rule
of thumb' set out in item (vii).
