Construction News

Fri June 18 2021

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Parallel adjudications set to rise

9 May 13 Expect an increase in parallel adjudications following TCC judgment, says Laura Phoenix, associate at Thomas Eggar LLP.

Laura Phoenix
Laura Phoenix

Parties can expect to be on the receiving end of simultaneous adjudications following Willmott Dixon Housing Limited –v- Newlon Housing Trust [2013].

In that case, a Technology &Construction Court (TCC) judge Ramsey J held that:

  • A party may refer several disputes to adjudication at the same time using parallel adjudications; and
  • Whilst failure to refer a dispute to an adjudicator within 7 days of giving notice of intention to adjudicate automatically deprives an adjudicator jurisdiction, failing to simultaneously copy the Referral to the Responding Party does not.

Background

The Trust employed Willmott Dixon to construct part of a mixed use development on PPC 2000 terms. These embraced collaborative working “to achieve transparent and cooperative exchange of information in all matters relating to the project”.

Disputes arose about the sums Willmott Dixon was entitled to be paid in relation to basement works and in relation to money withheld on account of liquidated and ascertained damages.

Willmott Dixon referred both disputes to adjudication simultaneously and ran the adjudications in parallel using the same CIC-appointed Adjudicator. He decided both disputes in Willmott Dixon’s favour even though the Trust reported that it had not received a copy of either Referral document until a fortnight after the Adjudicator. The Adjudicator gave the Trust an opportunity to serve Rejoinders to answer each Referral before making his Awards.

The Trust did not pay the two sums awarded. Willmott Dixon commenced enforcement proceedings in the Technology and Construction Court (‘TCC’) where the Judge granted summary judgment enforcing both Awards.

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In detail

Section 108 grants a right to refer “a dispute” to adjudication. Previous case law arose from scenarios where a party had sought to refer more than one dispute to adjudication in a single adjudication. It concluded that where there are multiple separate and distinct disputes, only one can be referred to an adjudicator unless the parties agree otherwise.

In this case, Willmott Dixon had commenced two adjudications simultaneously, referring one dispute per adjudication. The Judge said this did not deprive the adjudicator of his jurisdiction. He also questioned whether the previous case law was right.

Willmott Dixon’s failure to copy the Referral to the responding party simultaneously did not deprive the adjudicator of jurisdiction. The judge held it would not do so unless the procedure then resulted in a breach of natural justice. In his view, no breach of natural justice had occurred because the Trust had been able to respond to Willmott Dixon’s claims based on letters and documents received within the 7-day period and the Trust had the opportunity to serve Rejoinders following late receipt of the Referrals.

Also, the Judge said he would have expected the Trust to collaborate by querying non-receipt of the Referrals.

Strategy

An increase in parallel adjudications looks likely. This, combined with more flexibility in the requirement for simultaneous service, will put responding parties under greater time pressure. Now, more than ever, preparation is the key to successfully defending adjudication.

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