Chamberlain’s notice says: “A dispute arises under the subcontract as to the following matters.” It then gave a long list of complaints. It asked for money to cover the wrongful deduction of amounts included for acceleration of the works, the wrongful deduction of amounts included for preliminaries, the wrongful deduction of the alleged duplication of measured works … and so on, all the way to prolongation costs and what it was paid for its “security worm bolts”.
McAlpine’s response, by contrast, was simple. It said “shoo” to the adjudicator: “You have no business on this pitch because this is not a dispute, it is umpteen disputes; look at all the separate complaints in the letter.” McAlpine said that the adjudication rules were broken so the notice of adjudication was invalid.
Now then, if you were the adjudicator, what would you do? There you are, all puffed up as the referee, with one team telling you to give up the job and the other telling you to press on … This adjudicator stood firm. He said it was one dispute so he would not shoo. Twenty-eight days later, he awarded Chamberlain £56k to be paid forthwith. McAlpine said that since the referee never had a right to be on the pitch, his award didn’t count and it wouldn’t pay. And do you know that if it were right about the number of disputes, it was right to give short shrift to the award? Chamberlain called on the court for help.
John Redmond suggests that if an adjudicator puts a sum of money into an interim account for a variation, it is not a decision about the variation
The judge’s job was to decide how many disputes had been sent to the referee. He started by looking at the “notice of intention to adjudicate”. That is the first round fired in any adjudication. It is supposed to give the nature of dispute, details of where and when it arose and the nature of the redress sought. The judge could also have looked at the second round fired: the “referral”. That is, the bundle of documents that present the dispute – in other words, who said what to whom. But the judge said he would only look at the notice.
He said that it was up to the party that began the adjudication to describe the dispute as it wished. What it amounted to was then to be considered objectively. The assortment of items in the notice was to be put into a matrix of fact so that a “reasonable” person could ascertain its meaning against that background. A natural and ordinary approach to a commercial contract is to apply “business” common sense. I suppose that he is asking what the parties involved meant by the words and phrases used. He looked at the “redress” called for by Chamberlain, which was “a decision as to the amount owing and due to us of the amounts wrongfully withheld”.
Oh well, said the judge, the assorted list is merely one firm asking another for a sum of money having regard to the particular matters in the notice. It was one dispute. He enforced the adjudicator’s award.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.