(c) any challenge to the jurisdiction of Mr Molloy in Adjudication 4 had to be based on the dispute referred to him in that Adjudication and not his jurisdiction in respect of Adjudication 2. The challenge was not in respect of Adjudication 4. (d) If Decision 2 was relevant, it did not comprise multiple disputes. It was a single dispute arising out of Sisk's "assessment" of Prater's account and subsequent Payment Certificate and the referral simply included a number of issues arising out of that disputed certificate. So several issues but only one dispute.
Accordingly, in turn, Mr Molloy had no jurisdiction to reach the decision he did in Adjudication 4.
Sisk identified 3 disputes as having been referred for determination in Adjudication 2.
(a) as to the correct Subcontract completion date in connection with Prater's claimed entitlement to an extension of time. (b) as to whether the Subcontract included provisional sums – an issue of contract interpretation. (c) as to Sisk's entitlement to deduct certain indirect losses from sums due to Prater (although no payment was claimed). Applying the test set out by Akenhead J at paragraph 38 of his judgment in Witney Town Council v Beam Construction (Cheltenham) Ltd[7] as to what will constitute a single dispute, the issues raised by Prater in Adjudication 2 constituted 3 separate disputes which could have been decided independently.
The Judgment
The judge described Sisk’s argument as novel and lacking authority. Clause W2.3(11) provided that the adjudicator’s decision (in this case Decision 2) was binding on the parties unless and until revised by the tribunal. Further, clause W2.4(2) required a party to serve a notice of dissatisfaction to refer the matter to the tribunal. Although Sisk had served such notice, it had not referred the matter to the tribunal (court): “If Sisk objected to Decision 2 it was up to Sisk to bring and make good that challenge before the Court.” Therefore and in the meantime, the decision remained binding on the parties as a matter of contract. Furthermore, an adjudicator could not re-open matters decided by an earlier adjudicator. Thus Mr Molloy was bound by the findings he made in Decision 2 and could not revisit them in Adjudication 4. Although not necessary in light of those findings, the judge went on to consider and decide that the several issues decided in Decision 4, comprised a single dispute.
Prater’s response
(a) It was not open to Sisk to challenge Decision 2 in the context of Adjudication 4. Decision 2 was binding and enforceable as a matter of principle as well as contractual obligation unless and until revised by the Court pursuant to clause W2.3(11) of the Subcontract. (b) Sisk’s argument did not give a right to impugn Decision 4 for lack of jurisdiction of the Adjudicator, fraud or breach of the rules of natural justice – these being the only bases on which enforcement of Decision 4 could be challenged. Even if correct, the complaint was that Mr Molloy based Decision 4 on a mistake of law by treating Decision 2 as binding or as recording matters that could not be revisited.
[7] [2011] EWHC 2332 (TCC)
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