Jurisdiction – dispute arising under separate contracts: Delta Fabrication & Glazing Ltd v Watkins Jones & Son Ltd [2021] EWHC 1034 (TCC) HHJ Sarah Watson It was common ground that Delta entered into two subcontracts with Watkin Jones: one for cladding and one for roofing works, in each case in respect of Watkins Jones works under a main contract for Student Accommodation in Walthamstow. Each of the subcontracts had its own order number and detailed documentation. From February 2020, payment under the two subcontracts was administered together. Subsequently a final account sumwas agreed for both subcontracts together. A dispute arose over the final account which Delta referred to adjudication. Watkin Jones challenged the adjudicator’s jurisdiction contending that as the dispute arose under two separate contracts it could not be referred to adjudication under the Act. They did not give the adjudicator power to decide his own jurisdiction but they put forward reasons why he should resign. The adjudicator made a non-binding decision and proceeded with the adjudication. He was persuaded that by reason of there being an agreement to a single final account figure for both subcontracts, the parties had agreed to treat them as one. Delta’s application to enforce the award in its favour, rested on three alternative arguments each of which was resisted by Watkins Jones.
A dispute or difference could encompass a wide range of factual and legal issues but there did not have to be a complete identity of those issues, otherwise paragraph 9(2) of the Scheme would have no purpose. Whether one dispute was the same or substantially the same as another dispute, was a question of fact and degree. It was important to look at the dispute as set out in the notice of adjudication and what the adjudicator actually decided. This would determine how much or how little remained for the second adjudicator to consider. This again would be a question of fact and degree and the enquiry should focus on the key elements of the dispute before the first adjudicator and that decision. It may be the underlying subject matter of the two disputes was the same. That was not the test. However the second dispute could not just be an improved version of the first.
One relevant factor was whether the point could have been taken before.
In making the comparison what was required was a realistic and common-sense approach.
Finally, significant weight should be accorded to the second adjudicator’s decision to reject any challenge, since s/he was the decision-maker and well placed to undertake the factual analysis.
The sixth dispute was not the same as the second.
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