Edmund Nuttall Ltd V R G Carter Ltd
Technology and Construction Court
His Honour Judge Richard Seymour QC
21 March 2002
The adjudicator made a decision in the sub-contractor’s favour. The contractor failed to pay the amount awarded and the sub-contractor brought court enforcement proceedings. The issue for determination was whether the sub-contractor was entitled to summary judgment to enforce the decision. The contractor contended that the dispute which formed the subject matter of the adjudication as set out in the sub-contractor’s payment application was not the dispute which formed the subject matter of the sub-contractor’s solicitors’ letter (sent some months later) which constituted the sub-contractor’s notice of referral to adjudication with the result that the adjudicator did not have jurisdiction to make his decision by reason of his having decided something which had not been referred to him.
Judge Seymour agreed with the contractor’s contention. The "dispute" referred to in the sub-contractor's solicitors’ letter was the sub-contractor's (original) payment application comprising the package of facts relied on in support of the parties’ respective positions and the arguments rehearsed between them which had not been resolved. The sub-contractor's contention that its payment application was no longer the subject of any "dispute" on the ground that it was clear that the application would not be proceeded with by the sub-contractor should be rejected. At its highest the evidence was that the author of the sub-contractor's report which accompanied the formal notice of referral to adjudication had been working on it for some time before the referral with the result that the sub-contractor might have decided to abandon its payment application and proceed on the basis of the report. Also there was no reason to suppose that the sub-contractor had taken any position as to what it would do with the report once it became available. Finally the payment application did not comprehend any of the fruits of its reconsideration as set out in the report and whilst those fruits could potentially have ripened into a new "dispute" once the contractor had had an opportunity to consider the new facts and arguments in the report, they were not part of the "dispute" which existed at the time of the notice of referral to adjudication.
A claimant must ensure that its claims proceeded with in the adjudication are in essence the same as the “dispute” originally referred to adjudication.