Holt Insulation Ltd -v- Colt International Ltd
Although the subject matter of the two adjudications concerned the same payment application, there were two separate disputes referred in the two adjudications with the result that the adjudicator had jurisdiction to make the decision he did in the second
2 February, 2001
The decision in question was the second of two decisions made by the adjudicator arising out of the sub-contract. The Scheme for Construction Contracts applied to the adjudications. The subject matter of both referrals was a particular interim payment application made by the sub-contractor. No money was awarded to the sub-contractor under the first decision in which it claimed the ?balance due.? In the second adjudication the sub-contractor claimed a smaller balance due of such other sum or sums which the adjudicator decided was fair and reasonable. The adjudicator made a decision awarding the sub-contractor a specified sum representing the great majority of the sum claimed. The sub-contractor brought court proceedings to enforce the decision and applied for a summary judgment to be ordered in its favour. The contractor contended that the dispute in the second adjudication was substantially the same as the disputes in the first adjudication and was one in respect of which a decision had already been made. Paragraph 9(2) of the Scheme provided that the adjudicator had to resign where the dispute was (substantially) the same as one previously referred where a decision had been made. Judge Mackay held that the sub-contractor had referred two separate disputes in the two adjudications notwithstanding that the two adjudications concerned the same payment application. This meant that the adjudicator did have the jurisdiction to make his decision in the second adjudication and therefore had not been obliged to resign from the second adjudication. This was on the basis that paragraph 9(2) of the Scheme would have required him to do so if the dispute had been (substantially) the same as one previously referred where a decision had been made. The sub-contractor was therefore entitled to summary judgment in respect of the sum awarded to it in the second adjudication. Advice Note Paragraph 9(2) of the Scheme for Construction Contracts would at first glance appear to rule out more than one adjudication in respect of the same payment application. However, Judge Mackay in this case in effect held that the two different claims in respect of the same application were not in respect of the 'same dispute.?