Dispute – whether the same or substantially the same as previously decided: Lewisham Homes Ltd v Breyer Group plc [2021] EWHC 1290 (TCC) Waksman J Serial adjudication again. The issue in this case was whether the dispute decided by the adjudicator in what was the sixth adjudication between the parties, was the same or substantially the same as had been decided in the second adjudication. These adjudications arose out of a Term Maintenance Contract (TMC) for the replenishment of the claimant employer’s housing stock, including the installation of 7,000 door sets in blocks of flats, to meet fire safety requirements. In adjudication 2, the adjudicator had decided that if the defendant contractor was liable to replace the defective doors, the claimant could not claim a payment on account under the TMC. In due course in adjudication 6, the adjudicator found the claimant was entitled to £3.24m. The defendant contended before the court, as it had before the adjudicator, that he was being asked to decide the same or substantially the same dispute as in adjudication 2. Both the Scheme and the CIC model adjudication rules (which applied), provided that if that were the case then the adjudicator must resign.
Although Prater did not bring all its disputes in one single adjudication but instead chose, because of the complexity of the matters, to pursue several adjudications that was not the same as splitting a single dispute comprising several issues. It would have been impractical to deal with those issues in separate adjudications. The final issue was whether, as a matter of contract, it would have been open to Prater to bring more than one dispute forward in the same adjudication. The clear effect of W2 was to give effect to s 108 of the Act. Accordingly like section 108(1) of the 1996 Act on proper interpretation clause W2.1(1) of the Subcontract contemplated a single dispute being referred to the adjudicator at any time and not multiple disputes.
Judgment for the claimant.
The sixth adjudicator had rejected the challenge.
In reaching the same conclusion, HHJ Waksman held to the following principles.
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