An adjudicator can only deal with one dispute at a time. If more than one dispute is referred simultaneously to an adjudicator, they have no jurisdiction. There are few cases in which a challenge on this basis has succeeded, but the most frequently heard argument, disputing jurisdiction on this point, is that there is more than one contract. And deciding such a challenge has been made no easier by the repeal of section 107 of the Construction Act, that required “construction contracts”, subject to adjudication, to be in writing.
In RCS Contractors Ltd v Conway one party claimed there was one oral contract for works on three sites and the other party unsuccessfully claimed there were three. Mr Justice Coulson noted that, because section 107 had been “unthinkingly repealed”, adjudicators consequently now have to deal with entirely oral contracts, with all the uncertainty and contention that that can involve. He also pointed out that, in such cases, even if an adjudicator finds an oral contract, the responding party is likely to obtain permission to defend the claim on enforcement, because only rarely will a disputed oral agreement be the subject of a successful summary judgment application. In this case, the result of the repeal of section 107 had been a process lasting 16 months with large sums incurred in costs. That, he said, was the opposite of the quick, cheap, dispute resolution service that adjudication was intended to provide.