Tony Bingham’s column on the recent Willmott Dixon vs Newlon Housing dispute focused on procedural objections - but there’s an awful lot more to the case than that
In Tony Bingham’s account last week of the Willmott Dixon vs Newlon case (Building, 26 April, page 82) he focuses on lawyers’ “clever objections”, which, he says, won’t endear you to any adjudicator or the Technology and Construction Court (TCC).
With respect, Tony’s article misses the point – the key issues from this case are the TCC’s 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’s 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 “statement of case” 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 “statement of case” 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’s 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’t 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 “clever objections”, 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’s 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’s 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