Bothma (t/a Dab Builders) v Mayhaven Healthcare Ltd

An adjudication under the Scheme for Construction Contracts is confined to a single dispute unless all parties consent to the adjudicator determining more than one dispute. Separate claims remain one dispute where their resolution is materially interconnected, such as where the financial amount depends on an extension of time. Where the financial claim is unaffected by the other issues, the claims are independent disputes.

An adjudicator who determines multiple disputes without consent acts without jurisdiction. The resulting award is unenforceable as a whole because it cannot safely be severed. The court’s robust approach to enforcing adjudication awards cannot overcome a well-founded jurisdictional objection.

The claimants, building contractors, sought summary judgment to enforce an adjudicator’s award arising from works to enlarge a nursing home. The defendant employer cross-applied to strike out the enforcement claim, contending that the adjudicator had determined more than one dispute without the parties’ consent.

The referral concerned the completion date, extensions of time, a certificate of non-completion, architectural instructions and valuation number 9. Most of the monetary matters had subsequently been paid, leaving principally the adjudicator’s costs. The central issue was whether the referred matters constituted one dispute or two independent disputes for the purposes of the Scheme.

1. Outcome. The claimant’s application for summary judgment was refused. The defendant’s cross-application was granted. The adjudicator’s award was unenforceable, and a stay could be ordered if necessary.
2. Multiple disputes. Clause 8(1) of the Scheme permitted adjudication of more than one dispute under the same contract only with the consent of all parties. The court accepted the principle in Pring & St Hill Ltd v Hafner that an adjudicator deciding more than one dispute under the Scheme acts without jurisdiction. Since severance could not identify which part of the award should be enforced, the award was unenforceable as a whole.
3. Application of the test. The completion-date, extension-of-time and non-completion issues were separate from valuation number 9. A successful challenge to the non-completion certificate would have had no monetary effect on valuation number 9. The financial claim therefore did not depend on the completion-date or extension issues. The matters were two independent disputes, not sub-issues of a single dispute.
4. Authorities. The broad formulation in Fastrack Contractors Ltd v Morrison Construction Ltd was not decisive. The court observed that its relevant remarks were obiter and noted the difficulties identified in Barr Ltd v Law Mining Ltd. Sindall v Solland and David McLean Housing Contractors v Swansea Housing Association were distinguishable because the financial consequences there depended on the extension-of-time issue.
5. Waiver and enforcement. The employer had reserved its jurisdictional objections in sufficiently general terms and had not waived the present objection. The enforcement guidance in Carillion Construction v Devonport Royal Dockyard could not cure an award made without jurisdiction.