Barr Limited -v- Law Mining Limited
Matters referred constituted one 'dispute' for the purposes of paragraph 8(2) of the Scheme for Construction Contracts on the basis that those matters formed a single dispute as to sums due under the contractor
15 June, 2001
The employer challenged the enforcement of the decision in the contractor's favour on various grounds. The 'separate disputes? issue was that the contractor had sought to have (and in the event had obtained) one decision in one adjudication of several disputes and that paragraph 8(1) of the Scheme for Construction Contracts only permitted the adjudicator to adjudicate at the same time on more than one dispute with all the parties? consent. Lord Macfadyen stated that there was force in the employer's criticism of Judge Thornton's analysis in Fastrack Contractors v Morrison Construction (2000), ie that a ?dispute? was whatever claims, heads of claim, issues, contentions or causes of action were in dispute at the time the referring party chose to crystallise them into an adjudication reference. However, the adjudicator's view that the various matters referred to him formed a single dispute as to sums due under the contract should not be disturbed. The ?rescission issue? was based on the employer's contention that the adjudicator did not have jurisdiction to make any award in respect of work done by the contractor after the employer had rescinded the contract by reason of such work not having been carried out under a construction contract. Whilst it was common ground that that the adjudicator would not have jurisdiction to determine a claim for work done after rescission or presented in a form which did not distinguish between work done before and work done after rescission, the issue was whether the adjudicator had decided whether the contract had been rescinded. Lord Madfadyen held that the only fair reading of the adjudicator's decision was that he regarded the question of rescission or no rescission as unresolved and declined to resolve the question. Therefore the adjudicator did not have the jurisdiction to make the award in the contractor's favour which he did make. Advice Note Lord Macfadyen's opinion shows that there is a real tension between the provisions of paragraph 8(1) of the Scheme for Construction Contracts and the concern of judges not to strike down a decision based on a highly technical analysis of whether it can be said that the ?dispute? in fact referred comprised more than one ?dispute.?