Bothma & Anor (t/a DAB Builders) v Mayhaven Healthcare Ltd

Under clause 8(1) of the Scheme for Construction Contracts (England and Wales) Regulations 1998, an adjudicator lacks jurisdiction to determine more than one dispute under the same contract at the same time without the parties’ consent. Whether a reference contains one dispute or several is a question of fact, assessed primarily from the adjudication notice and the disputes actually identified. A valuation claim is linked to time issues only where it includes disputed time-related sums. An incidental, undisputed reimbursement item does not create that link. An adjudicator may have a limited inquisitorial role, but need not investigate a pure valuation claim to discover an unarticulated connection. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

The appellants, contractors, sought to enforce an adjudicator’s award under a construction contract. The adjudicator had granted an extension of time, declared a certificate of non-completion invalid, and awarded a further sum on Interim Valuation 9.

The High Court held that the adjudication concerned two unrelated disputes: the valuation dispute and the contractor’s entitlement to an extension of time and related relief. The contractors applied for permission to appeal, arguing that an item for hiring a kitchen portakabin linked the valuation dispute to the time issues. The central question was whether the adjudicator had jurisdiction under clause 8(1) of the Scheme for Construction Contracts (England and Wales) Regulations 1998.

The Court of Appeal unanimously refused the contractor’s application for permission to appeal.

1. Lord Justice Dyson held that clause 8(1) of the Scheme for Construction Contracts (England and Wales) Regulations 1998 deprived an adjudicator of jurisdiction to determine more than one dispute at the same time unless all parties consented. The question whether a reference contained one dispute or several was a question of fact.
2. The dispute was defined, in the first instance, by what was referred in the adjudication notice. Although an adjudicator might in some circumstances perform an inquisitorial role, that did not require a general investigation of the valuation claim to discover an undisclosed link with time-related issues.
3. The claim under Interim Valuation 9 was, on the facts, a pure valuation dispute. The portakabin item did not provide the necessary link. It was not part of the contractor’s preliminaries, was hired for the employer’s use, and was fully reimbursed without dispute. It was therefore artificial to treat its inclusion in the valuation as connecting the valuation dispute with the extension-of-time and certificate issues.
4. A sufficient link could have existed if Interim Valuation 9 had included disputed extended preliminaries or other time-related sums. It did not. The High Court had therefore reached the correct conclusion, and the proposed appeal had no real prospect of success.
5. Lord Justice Waller recognised that the jurisdiction point appeared technical, but agreed that granting permission would serve no useful purpose where the appeal was practically bound to fail and would generate further costs. Order: application refused.

1. Court of Appeal (Civil Division) — On 14 May 2007, refused the contractors’ application for permission to appeal: [2007] EWCA Civ 527 .
2. High Court of Justice, Queen’s Bench Division, Bristol District Registry — HHJ Havelock-Allan QC held that the adjudicator had determined two unrelated disputes concerning Interim Valuation 9 and the extension of time and certificate of non-completion.