黑洞社区

In Tony Bingham鈥檚 account last week of the Willmott Dixon vs Newlon case (黑洞社区, 26 April, page 82) he focuses on lawyers鈥� 鈥渃lever objections鈥�, which, he says, won鈥檛 endear you to any adjudicator or the Technology and Construction Court (TCC).

With respect, Tony鈥檚 article misses the point 鈥� the key issues from this case are the TCC鈥檚 findings in relation to:

• compliance with adjudication rules n adjudications from partnering contracts
• multiple disputes.

Adjudications are conducted pursuant to sets of rules agreed by the parties or implied by the Construction Act. Those rules deal with, for example, the appointment of the adjudicator and the timing of the referral of the dispute to the adjudicator. Compliance with the rules is important and can be determinative of whether or not an adjudicator鈥檚 decision is enforceable. Moreover, adjudicators dispensing justice (even if it is rough and ready) must conduct themselves in a manner which ensures fairness and complies with natural justice.

In this case, the contractual adjudication rules required Willmott Dixon to serve a 鈥渟tatement of case鈥� on the adjudicator and Newlon. Willmott Dixon did prepare a statement of case (entitled the referral). However, Newlon argued that Wilmott Dixon did not provide it with the referral, but only the supporting documents appended.

Adjudications are conducted pursuant to a set of rules agreed by the parties or implied by the construction act

The judge accepted that a failure to serve a statement of case would be a serious breach of the adjudication rules and render the decision a nullity. But, in this case, the supporting documents provided by Willmott Dixon sufficiently set out its 鈥渟tatement of case鈥� and, given the adjudication rules did not prescribe any format for the statement of case, Willmott Dixon was not in breach.

This is a useful insight into the court鈥檚 current approach to procedural compliance. Previously a court may have viewed compliance more strictly because the referring party could simply start the process again.

On the issue of partnering, the disputes that culminated in this decision arose from a PPC2000 (partnering) contract. That contract included obligations analogous to other partnering contracts, for the parties to work together, co-operate and exchange information. Notably, the court said that even if Willmott Dixon had failed to provide Newlon with its statement of case, the partnering obligations required Newlon to notify Willmott Dixon and give it the opportunity to remedy that breach. This observation by the court is of particular interest given the prevalence of partnering contracts and specifically because:

• it suggests the court favours a broad interpretation of partnering obligations
• partnering obligations continue (and would again be broadly interpreted) notwithstanding the parties may be opposed in formal dispute resolution.

Multiple disputes have historical significance in adjudication. One of the early parameters set by the courts was that unless the parties otherwise agreed, only one dispute could be referred to adjudication at one time. Where a party referred more than one dispute to an adjudicator, the decision would be a nullity. This case involved two separate adjudications before the same adjudicator, run on identical timetables. Newlon argued that the multiple dispute principle should equally apply to this situation.

The judge didn鈥檛 agree. He accepted that it was permissible to carve up disputes and pursue these under separate adjudications before the same adjudicator at the same time. The multiple disputes principle therefore only applied to a single adjudication proceeding.

Finally, on 鈥渃lever objections鈥�, Tony makes it clear that he disapproves. Evidently he would advise against any respondent raising procedural points in adjudication, not least because you risk getting the adjudicator鈥檚 back up. That could be conceivable if a respondent forced the adjudicator to decide procedural issues (and therefore his jurisdiction) as part of his decision. However, in this case, the procedural issues raised by Newlon鈥檚 lawyers were simply part of the defence. They did not bring matters to a head and invite the adjudicator to resign because of procedural irregularities. It was left entirely to the adjudicator to take these submissions into account in reaching his decision.

It is unlikely that this put the adjudicator off.

Digby Hebbard is a partner at Trowers & Hamlins and acted for Newlon Housing Trust in this case