Once, Twice, Three Times An Adjudication.

Judge Sarah Watson sitting in the TCC in England recently issued her judgment in the case of Quadro Services Ltd v Creagh Concrete Products Ltd . This is a timely reminder to ensure that when referring a matter to adjudication that only one dispute is referred to at a time.

This case involved three payment applications served by the Claimant each of which were not subject to a valid pay less notice. Interestingly, the payment applications were cumulative, with each payment application being for the full value of the work done, less the previous payment applications. The Defendant failed to make payment claiming that they were setting off a claim for damages (albeit at that stage not judicially determined. The Claimant denied they were entitled to offset the potential claim and that payment of the sums from the three payment applications were accordingly due. The matter was then referred to adjudication by the Claimant. 

The Defendant responded to the referral notice setting out their dispute as to the adjudicator’s position on the basis that whilst reference was made to one sum payable it in fact arose from three separate payment applications. The Claimant maintained that as the sum due fell under one contract (despite being formed of three payment applications) the adjudicator did have jurisdiction. The Defendant took no further part in the adjudication. The adjudicator held that “a single dispute had been referred, namely a dispute over an amount owed” and subsequently issued his decision in favour of the Claimant.

The Claimant sought summary judgment before the TCC and the Defendant defended the action on the basis that the adjudicator had no jurisdiction. The TCC considered the case of Witney Town Council v Beam Construction (Cheltenham) Limited which gave considerable consideration as to what is meant by “dispute”. The TCC in this case held that it was clear from the authorities it was referred to that one “dispute” can include numerous sub-issues which might be capable of being determined independently from each other. 

Whilst the TCC noted that whether or not multiple payment applications would form one dispute or not was a variable question of fact, it was satisfied that in this instance the three payment applications did form one dispute. In delivering her judgment Judge Watson stated “If the Defendant’s argument were right, the result would be that the parties would be put to the very significant cost and inconvenience of numerous separate adjudications to recover a single claimed balance under a single contract. 

That would be contrary to the policy underlying the adjudication process of efficient, swift and cost-effective resolution of disputes on an interim basis.” The TCC therefore issued summary judgment in favour of the Claimant.

This is an important case and sheds some useful light on what is meant by “dispute” in terms of an adjudication and the impact upon and adjudicator’s jurisdiction. The full judgment is available at: https://www.bailii.org/ew/cases/EWHC/TCC/2021/2637.html