In Willmott Dixon Housing Ltd v Newlon Housing Trust [2013] EWHC 798 (TCC) the TCC has indicated that referring multiple disputes to adjudication may be acceptable even without the other party’s consent, where the adjudication is not conducted under the Scheme for Construction Contracts. Further, Ramsey J held that failure to serve a referral notice on the responding party within seven days does not deprive the adjudicator of jurisdiction (although issues may arise in relation to natural justice). Alex Hickey of 4 Pump Court represented the Defendant, Newlon.

Willmot Dixon was a contractor employed by Newlon. On 9 October 2012, Willmot Dixon served two notices of intention to refer to adjudication. The same adjudicator was appointed in relation to both notices, and the two adjudications ran in parallel. On 11 October 2012, Willmot Dixon sent bundles of documentation to the adjudicator and to Newlon. Willmott Dixon also prepared Referral Notices, which Newlon subsequently denied having received. The adjudicator thought initially that he had not received the Referral Notices either, but later realised he had received them. Newlon did, however, provide a full Response to the bundles of documentation. Willmot Dixon provided a copy of the Referral Notices with its Replies, and Newlon was able to respond to them in Rejoinders. The adjudicator found in Willmot Dixon’s favour on both adjudications.

In enforcement proceedings, Newlon argued that the adjudicator’s decisions should not be enforced because the Referral Notices had not been validly served on the adjudicator or on Newlon within seven days of the notices of intention to refer to adjudication.

Ramsey J found that there was no real doubt as to whether the adjudicator had received the Referral Notices within seven days. Accordingly, the adjudicator had jurisdiction in both adjudications. Any failure to serve the Referral Notices on Newlon would not have invalidated jurisdiction. Accordingly, absent other considerations, the decisions should be enforced.

Ramsey J also noted that, whilst arguments in relation to natural justice might arise in an appropriate case, here Newlon had received the Referral Notices later and so had an opportunity to respond. In any event, the bundles of documentation and covering letter received by Newlon would have been sufficient for the purpose of providing a Referral Notice. Further, Ramsey J commented that Newlon should have contacted Willmot Dixon alerting them that they had not received any Referral Notice and could not rely on its failure to do so in resisting enforcement.

Newlon also argued that referring two adjudications was contrary to s108 of the Construction Act, on the basis that only a single dispute can be referred to an adjudicator. Ramsey J dismissed this, on the basis that Willmott Dixon had referred two separate disputes to adjudication, which was not prohibited by s108. He further stated obiter that he would have enforced the decision in any event, on the basis that the cases stating that only a single dispute can be referred all arise out of the Scheme for Construction Contracts, and not out of the wording of s108. Ramsey J concluded that the reference to a dispute in s108 “is more likely to be a generic reference to ‘a dispute’, without seeking to limit it to a singular dispute.” Ramsey J concluded that referral of multiple disputes was acceptable under the rules that applied in the present case (the Construction Industry Rules).

This judgment raises two issues of particular note:

  • Where a responding party receives supporting documentation, but no statement of case entitled ‘referral’, it will be expected to alert and seek clarification from the referring party. In any event, provided that the adjudicator has received a sufficient referral notice, the failure to serve all the documents on the responding party will not itself invalidate the adjudicator’s decision.
  • The traditional approach (however loosely interpreted) has been that only one dispute may be referred to an adjudicator under s108 of the Construction Act. However, Ramsey J has suggested that this may be incorrect. Whilst parties should refer only a single dispute to adjudication under the Scheme for Construction Contracts (unless the parties agree otherwise), it may be acceptable under other adjudication rules to refer multiple disputes.