Deluxe Art & Theme Ltd v Beck Interiors Ltd (TCC - 12.2.2016)
The sub-contractor began adjudication 3 while adjudication 2 was still underway. Coulson J held that the dispute referred by the sub-contractor in adjudication 2 was a different dispute to that referred by it in adjudication 3. Paragraph 8(1) of the Scheme for Construction Contracts provides that the same adjudicator may only adjudicate at the same time on more than one dispute under the same contract if both parties consent. The contractor did not consent to the adjudicator dealing with the two separate disputes referred by the contractor in adjudication 2 and subsequently in adjudication 3.
Coulson J, in holding that the adjudicator had jurisdiction in adjudication 2 but not in adjudication 3 in consequence of paragraph 8(1), stated that his earlier finding that the disputes referred in the two adjudications were different mattered because the weight of views judicially expressed is that an adjudicator only has the jurisdiction to deal with a single dispute at any one time. Whilst this conventional view was challenged obiter by Ramsey J in Willmott Dixon Housing v Newlon Housing Trust (2013), it was not clear that all of the relevant authorities were cited to Ramsey J and Akenhead J in TSG Building Services v South Anglia Housing (2013) was not persuaded by this unconventional approach and correctly said that the authorities were sufficiently well-established now to suggest that only one dispute could be referred to adjudication at any one time.
Ramsey J stated in Willmott Dixon that a party could refer two disputes to adjudication at the same time by giving two notices of adjudication and making two referrals based on a party’s entitlement under section 108(2)(a) of the Construction Act to "give notice at any time of his intention to refer a dispute to adjudication." This reasoning of Ramsey J could not be faulted because there was nothing in the Act or the wording of the CIC Rules, which applied in that case, to prevent a party from following this course and had not been doubted, at least on this point. However, there was, however, a critical difference between this case and Willmott Dixon, namely that the adjudication in this case was conducted pursuant to the Scheme, because paragraph 8(1) on its face only allows the adjudicator to deal with more than one dispute at the same time with the consent of all the parties and therefore provided an insurmountable jurisdictional hurdle for the sub-contractor.