Harding v Paice (TCC 21.11.2014)
The contractors application for an injunction to prevent the adjudication begun by the employer to determine the true value of the works from proceeding should be dismissed
21 November, 2014
HARDING v PAICE
Technology and Construction Court
21st November 2014
The contract incorporated the JCT Intermediate Form of Building Contract 2011 and the Scheme for Construction Contracts. Both parties purported to terminate the contract. The contractor submitted its final account pursuant to clause 8.12.3 setting out the value of the work properly executed and the balance allegedly due to it. The developer refused to pay that sum and the contractor referred the resulting dispute to a (third) adjudication. The adjudicator in awarding the contractor the balance claimed held that (i) The contractor had terminated the contract (ii) The developer had not issued a compliant pay less notice setting out the basis on which the sums set out in the notice were calculated and (iii) The contractor was therefore entitled to payment of the sum it claimed. The employer began a (fourth) adjudication seeking a declaration as to the true value of the works. The contractor applied for an injunction to prevent the fourth adjudication from proceeding on the ground that the adjudicator had no jurisdiction because the dispute referred was (substantially) the same the same as that decided in the third adjudication.
Edwards-Stuart J dismissed the contractor’s application.
What is due under clause 8.12.5 is the “the amount properly due” in respect of the contractor’s final account. However, the adjudicator stated that he was not deciding that and he instead determined that the employer had to pay the amount stated in the contractor's account in the absence of a valid pay less notice. The employer therefore had the right to have determined the question of what sum was properly due.
In addition the disputes referred in the two adjudications were not the same. It could not be said that the adjudicator in the fourth adjudication would be deciding substantially the same dispute as referred previously within the meaning of paragraph 9(2) of the Scheme because (i) Paragraph 9(2) refers to "dispute" and "one" in the singular with the result that the reference to "a decision" must be a decision on the dispute referred in the first adjudication and (ii) If the first dispute raised more than one issue or, as in the instant case, raised issues that were put in the alternative, a decision by an adjudicator in the first adjudication only on a party's primary case did not prevent a second adjudicator from determining the alternative case.