It might. Take the common situation of a dispute about an interim payment. The contractor thinks it is entitled to an interim payment in March of £100,000. The architect has issued a certificate for £50,000. There is a dispute, and the contractor refers it to adjudication.
The adjudicator has to work out what the contractor should be paid. He is presented with an account prepared by the contractor which includes 50 variations each with a figure claimed as the correct value. The employer says the figure for each one is wrong, and argues that a smaller sum is due. The adjudicator works his way through the account and puts a figure on each, adds it all up, and decides that the sum for the March interim account is £75,000. That is a decision and it is binding for the time being.
But several months later there is a dispute about the final account. This time the contractor says it should be paid £750,000, and the employer says the job was worth only £500,000. Off they go to adjudication again, and a different adjudicator is appointed. Surprise surprise, the account contains the same variations that caused a problem in the March interim account.
What is the new adjudicator to do? They cannot mess about with the first decision. If all the first adjudicator decided was the final March figure, that is not a problem. But if the value put on each of the 50 variations was a decision, they will be bound by all of them. So were those figures decisions or merely reasons for the one decision on the bottom line? If they are reasons, they are not binding on anyone, and new values for the variations can be figured out.
Was the ‘adjudicator’s view’ a decision or a reason? If it was just a reason, why was it so important?
This sort of problem has been popping up in cases about jurisdiction. A contractor may be arguing that its entitlement this month is made up of money on the measured account and also prolongation costs. The adjudicator will have to work out who was responsible for delay, and will therefore be looking at extensions of time. If the adjudication is subject to the rules set out in the Scheme for Construction Contracts, they can only deal with one dispute at a time unless everyone consents. If the measured account and the extensions of time are different disputes, they may not be able to deal with both. In several cases, such as McLean vs Swansea, the court has held that these are really different parts of the one dispute, and therefore the adjudicator can deal with them.
This would suggest that the conclusion the adjudicator reaches about the extension of time is really just a reason for the decision on how much should be paid, and not binding on anyone. But in McLean, Judge Humphrey Lloyd suggested that the adjudicator's view of the appropriate extension of time was so persuasive that the contractor had "no realistic prospect" of arguing that the employer was not entitled to liquidated damages on the basis of it. Was the "adjudicator's view" a decision or a reason? If it was just a reason, why was it so important?
The opinion of Lord Macfadyen in Barr vs Law Mining also provides a problem. He said the adjudicator was entitled to conclude that the several matters referred were in fact one dispute. But the adjudicator had expressed his decision in three parts, and in one of those parts he had exceeded his jurisdiction. Only part of the decision was to be enforced. That sounds like three decisions, which suggests there were three disputes, not one.
John Redmond is head of construction at solicitor Osborne Clarke in Bristol.