Case 10: Quadro Service Ltd v Creagh Concrete Products Ltd [2021] EWHC 2589 (Ch) 19 Aug 2021 (HHJ Sarah Watson QC – Dispute – meaning – sum due on three payment application was a single dispute Section 108(1) of the Act gives a right to refer “a dispute” to adjudication at any time. The Scheme at paragraph 1(1) refers to “any dispute” (singular) and is construed accordingly. Thus, an adjudicator does not have jurisdiction to determine more than one dispute in any single adjudication, unless the parties otherwise agree. Sometimes, because of complexity, the issues referred to adjudication form only part of a larger dispute that has arisen say upon a payment application. They were nevertheless held to be part of a single dispute. They were no more than aspects of a dispute between the parties as to the proper amount of a payment certificate. You have to look at the facts of the case and use common sense. Here, rather than being obviously aspects of a single payment application, the dispute concerned three separate payment applications. The adjudicator decided it was a single dispute and awarded the claimant £40,000. On enforcement and applying the above principles, the court looked at the referral, the surrounding facts in and decided that the question ‘What was due under three payment applications?’ comprised a single dispute.
The three applications were linked as they were cumulative. What was being claimed was the total sum due under the contract. Each application could be a sub-issue that was part of a wider dispute as to the total sum due to the claimant under the contract as in the case of a claim for variations If D was right, it would mean parties incurring the very significant cost and inconvenience of three adjudications to recover “a single balance claimed under a single contract.”
Comment
It appears that the defining factor was that the referring party was claiming the total sum due under the contract at the date of the referral to adjudication, which was a single sum albeit the product of three applications. It also appears to have been significant that the applications were cumulative and therefore pointing to a total sum due. The decision cannot be faulted on the facts, though it does seem to be edging towards the boundary of what constitutes a single dispute and ‘bundling up’ separate payment applications, at least where they are not cumulative, may not achieve the same outcome.
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