Civil Engineering Reference
In-Depth Information
16.6.3 More than one dispute
Paragraph 8(1) of the Scheme provides that an adjudicator can deal with more than
one dispute arising at the same time if all parties to the disputes agree.
It is important to distinguish between on the one hand, different disputes and on
the other, different aspects of a single dispute. This has greatly exercised the minds of
judges in England. For example, in
David McLean Housing Contractors Ltd
v.
Swansea
Housing Association Ltd
(2003) His Honour Judge Lloyd considered when a dispute is
more than one dispute. His starting point was paragraph 8(1) of the (English) Scheme
which precludes the reference of more than one dispute to adjudication. In the event
the Referring Party wishes to refer more than one dispute, then the consent of the
other party is required. In this case, consent was not given by the Respondents.
HisHonourJudgeLloydstatedthatonehadtoconsidertheNoticeofAdjudication
in its context. When this was examined it was plain that the real dispute was what pay-
ment ought to have been made as a result of Application 19. This contained various
elements which were set out in the Notice of Adjudication. The Notice was valid in
referring the dispute about the payment to be made and could not be decided without
considering each element. he Judge applied what he called a 'benevolent interpre-
tation' and said that the Notice did not refer more than one dispute. It referred one
dispute, namely, 'How much should I be paid or how much should I have been paid
on Application 19?'
It is considered that in Scotland this approach is one which is consistent with the
wording of the Scheme, since Paragraph 20 provides that 'The adjudicator shall decide
the matters in dispute and may make a decision on different aspects of the dispute at
different times.' This wording is not used in the English and Welsh Scheme. A Notice
that refers more than one dispute is invalid. The appointment of an adjudicator in
consequence of it is similarly invalid, unless the other party has nonetheless clearly
and knowingly accepted the Notice or the appointment so that there exists consent
for the purpose of paragraph 8 of the Scheme.
Paragraph 8(2) of the Scheme provides that the adjudicator may, with the consent
of all parties to those contracts, adjudicate at the same time on related disputes under
different contracts. While multi-party adjudication is possible if consent is obtained,
it is relatively rare, perhaps because of the 1996 Act timetable, the reluctance of some
parties to agree to it, or because of the difficulty in ensuring that contracts are clearly
'back to back'. See also Section 16.13.
16.6.4 Resignation of the adjudicator
Paragraph 9 of the Scheme provides that an adjudicator may resign at any time by
giving written notice to the parties. An adjudicator must resign where 'the dispute
is the same or substantially the same as one which has previously been referred to
adjudication, and a decision has been taken in that adjudication'. There have been
various cases regarding whether a dispute is the 'same or substantially the same' as a
previous dispute and these are considered in Section 16.10.2.
