An architect issues a ‘Final Certificate’. The contractor sends a letter claiming £115,450.50, and follows up with an adjudication. The adjudicator decides that the ‘Final Certificate’ was ineffective and the contractor’s letter was not a valid payment notice, as it was based on the invalid ‘Final Certificate’ and it did not make clear that it was a notice and issued under the relevant clause. The contractor sends another letter seeking payment, describing it as a notice pursuant to the same clause, and follows up with a second adjudication, in which the employer (who did not serve a pay less notice) declined to participate, saying that it was the same, or substantially the same, dispute as had been decided in the first adjudication. But was it?

The cases say that whether one dispute is substantially the same as another dispute is a question of fact and degree and the Court of Appeal decided that, in this case, the disputes were not substantially the same. The second adjudicator recognised that both parties were bound by the first adjudicator’s finding that the ‘Final Certificate’ and the contractor’s first claim letter were ineffective and was being asked to decide whether a different notice served four months later had different consequences. The contractor was not making good a shortcoming in the earlier letter; it was approaching its claim via a new and different route. It was the new notice, and only the new notice, which founded the contractor’s entitlement to be paid.

Brown & Anor v Complete Buildings Solutions Ltd [2016] EWCA Civ 1