proceedings to determine the validity of the payment notices in each case.
The defendant employed the claimant to carry out groundworks under the first subcontract and drainage works under the second subcontract, in each case in respect of the same site in Epping, Essex. The two subcontracts were on the same terms. The claimant made payment applications under each subcontract, and the defendant disputed the claimed entitlement. In two successive adjudications, the same adjudicator was asked to decide what, if any, sum was due. In each case, he found in favour of the claimant and awarded them the sum claimed. The defendant participated in the first adjudication. Having lost, they later objected to the same adjudicator in the second adjudication and contended he had no jurisdiction as the second adjudication raised the same or substantially the same dispute as had been decided in the first adjudication, namely whether the claimant’s payment application was valid. In the first adjudication, the claimant had submitted a short but unsolicited surrejoinder to answer the defendant’s permitted rejoinder. The defendant contended that the adjudicator ought not to have had any regard to the surrejoinder but had, in fact, in breach of the rules of natural justice, placed significant reliance on it and it had influenced his decision, such that the claimant had obtained an unfair advantage. The defendant raised the same jurisdictional and fairness issues before the court. They argued that even if the adjudicator had jurisdiction in the second adjudication, he had predetermined the issue as to the validity of the payment notice, having previously decided the payment notice in the first adjudication was valid.
Natural justice
The court found that the claimant had not stolen an unfair advantage in serving a rejoinder without permission. It was no more than a succinct rebuttal of several new and detailed arguments in the rejoinder supporting a case of implied payment terms. It was ‘patently clear … that the adjudicator's approach to the contents of the surrejoinder [did] not come close to being more than peripheral to or sufficiently decisive or important in the decision-making process, in the way contended for’. The defendant had no real prospect of success on the natural justice issue.
Jurisdiction in the second adjudication
While the issues arising on the referral notices in both adjudications were the same and concerned the payment regime under the two subcontracts and the validity in each case of the payment application and payment notice, the disputes arose under two
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