Harding (t/a M J Harding Contractors) v Gary George Leslie Paice Kim Springall

For the purposes of the prohibition on repeat adjudications, the relevant comparison is between the dispute and decision actually determined, not every issue or alternative case included in the first referral. A second adjudication is permissible where the first adjudicator decided only a primary issue and the second adjudicator is asked to determine an undecided alternative issue. The first adjudication decision remains binding and must be complied with pending later adjudication or litigation on the sum properly due.

The claimant contractor sought an injunction restraining the defendants from pursuing a fourth adjudication. In the third adjudication, the adjudicator decided that the claimant was entitled to payment because the defendants had not served a compliant Pay Less notice. The adjudicator expressly stated that he had not decided the merits of the contractor’s valuation.

The defendants’ fourth adjudication sought determination of the value of the works and entitlement arising from alleged defects. The central issues were whether the fourth adjudication concerned the same or substantially the same dispute, and whether the defendants could seek determination of the amount properly due while complying with the earlier decision.

1. Application dismissed. The interim injunction was discharged forthwith.
2. The third adjudicator had decided that, in the absence of a compliant Pay Less notice, the defendants had to pay the sum stated in the contractor’s account. He had not decided what amount was properly due in respect of the account, nor had he determined the merits of the valuation.
3. The earlier decision did not permanently convert a potentially excessive account into the amount properly due. The defendants remained obliged to comply with the adjudicator’s decision in the meantime, but could have the properly due sum determined by later adjudication or litigation.
4. Paragraph 9(2) of Part I of the Scheme for Construction Contracts requires an adjudicator to resign where the dispute is the same or substantially the same as a dispute previously referred and decided. The provision is concerned with what was decided, not merely with the scope of the first referral.
5. Where a first adjudication raises issues in the alternative and the adjudicator decides only the primary case, a second adjudicator may determine the alternative case if it becomes necessary. This accords with the approach in Quietfield Ltd v Vascoft Construction Ltd [2006] EWCA Civ 1737 and the analysis of the scope of the dispute and decision in Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333.
6. The judge expressed reservations about applying the Scheme’s payment provisions to clause 8.12.5, including the meaning of “due date for payment” and “notified sum”, but declined to decide the point because it had not been argued.

First-instance decision. No appellate history was stated in the judgment.