Willmott Dixon Housing Ltd (formerly Inspace Partnerships Ltd) v Newlon Housing Trust [09.04.13]

High Court confirms party may refer two adjudications to same adjudicator at same time.

Willmott Dixon Housing Ltd ("Willmott") was a contractor employed by Newlon Housing Trust ("Newlon"). On the same day, Willmott served two notices of intention to refer to adjudication disputes in respect of two separate sums of money owed by Newlon. Both disputes were determined in favour of Willmott by the same adjudicator and Willmott subsequently applied for summary judgment to enforce the decisions.

Newlon submitted that the adjudication decisions should not be enforced because:

  • Neither it nor the adjudicator had received the referral notice. Consequently, the adjudicator did not have jurisdiction to determine the dispute as there had been a failure to comply with rule 14 of the Construction Industry Council (CIC) Rules.
  • The adjudicator was not entitled to deal with more than one dispute. This was based on s.108 of the Housing Grants, Construction and Regeneration Act 1996 ("the Act"), which precludes a party from referring more than a single dispute at the same time.

Decision

The High Court held that the adjudicator had not been deprived of jurisdiction. He had expressly confirmed that he had been correctly served with the referral notice and supporting documents. Provided the referring party sends a statement of its case to the adjudicator within seven days of giving notice of adjudication, that is sufficient to establish their jurisdiction. Furthermore, since Willmott’s covering letter had sufficiently set out its case, Newlon could not argue that there had been any breach of the rules of natural justice, even if they had not received the referral notice. This was demonstrated by the detail in Newlon’s response.

The court also held that there is nothing in the Act to prevent a party giving two notices of adjudication, each relating to a single dispute, and each being referred to the same adjudicator.

Comment

This case demonstrates that arguing technical breaches of the CIC Rules will not find favour with the courts. The Judge noted the general principle set out in rule 1 of the CIC Rules, and explained that the object of adjudication is to reach a fair, rapid and inexpensive decision, rather than focus on technicalities. The Judge also concluded that, by signing the standard form of project partnering contract, the parties had agreed to work in mutual cooperation, including by the "transparent and cooperative exchange of information ..."

Accordingly, if you notice that key documents are missing from a referral, there is an implied onus on you and/or your client to draw this to the attention of the referring party, in the interests of a swift resolution.

The Judge acknowledged the difficulties of interpreting "a dispute" in s.108 of the Act. Whilst he did not rule on this point, he suggested that if s.108 were to limit adjudications solely to single disputes, this would have the ultimate effect that the Scheme would not comply with the Act. The Judge suggested that "a dispute" was more of a generic reference, which did not seek to limit it to a single dispute.

Read other items in the June 2013 Insurance Brief