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Holt Insulation Ltd v Colt International Ltd [2001] LV01 5929 TCC
This summary was provided by CMS Cameron McKenna LLP.
For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes
Although references to an adjudicator may relate to the same matters arising out of contractual relations between parties they do not necessarily relate to the same dispute. The notice of referral must be closely examined to see if the dispute is the same.
Judge Mackay, Liverpool District Registry Technology and Construction Court.
Date unknown
H sub-contracted work to C. C applied for interim payments during the course of the work. The amount due in respect of application number 10 was disputed. C argued that they were owed £110k. The matter was referred to an adjudicator and C requested that the adjudicator order "immediate payment of the balance of the sum due."
The adjudicator decided that due to the terms of C's notice of referral his function was only to decide whether the precise sum claimed by C was due. The adjudicator considered that his jurisdiction did not allow him to decide matters of alternative valuation. The adjudicator found that he could not agree that the totality of the sum requested was due and he decided that no money was to be paid.
C served a further Notice to adjudicate saying that it was entitled to application number 10 "or such other sum the adjudicator should find was due." The same adjudicator was appointed. H, however, objected to the further adjudication. H said that the adjudicator had already been asked by C to deal with application number 10, and that under paragraph 9(2) of the Scheme the adjudicator should resign if the dispute was the same or substantially the same as one previously referred to adjudication and where a decision had been made. The adjudicator, however, having close regard to the Notices to adjudicate decided that there was an issue that had not arisen on the earlier referral. The adjudicator having reviewed the claim made an award in favour of C. H then refused to pay. The adjudicator had, in fact, already worked out that C was entitled to £73k but had no power under the first adjudication to say so.
H sought an order that the adjudication should be set aside on the basis that the adjudicator had no jurisdiction. C counterclaimed for a judgment enforcing the adjudicator's award.
Judge Mackay concluded that while the references to the adjudicator related to the same matters arising out of contractual relations between the parties, they did not relate to the same dispute. The Notices were crucially different and the adjudicator was therefore correct in making the decision that he did on the second adjudication.
Although references to an adjudicator may relate to the same matters arising out of contractual relations between parties they do not necessarily relate to the same dispute. The notice of referral must be closely examined to see if the dispute is the same.
This summary was provided by CMS Cameron McKenna LLP.
For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes
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