It is well established under the Scheme that only a single dispute may be referred to adjudication at any one time, unless the parties agree otherwise. Paragraph 8 of the Scheme states:
“The adjudicator may, with the consent of all the parties to those disputes, adjudicate on more than one dispute under the same contract.”
The courts have held that the wording of paragraph 8(1) is clear in limiting an adjudicator’s ability to deal with more than one dispute under the Scheme to circumstances where the parties give him/her consent to do so. It should be noted that the courts have also confirmed that this applies not only to multiple disputes in one Notice of Intention to Refer but also to multiple disputes referred in separate Notice of Intention to Refer to the same adjudicator.
It will of course be key to consider at the outset whether there are in fact multiple disputes or if the issues all pertain to one dispute. This is something we regularly advise clients on and there is a vast array of case law on the meaning of a dispute.
It is also important to keep in mind that this position only concerns adjudications under the Scheme. However, many standard form contracts (such as those produced by the SBCC and JCT) or bespoke contracts adopt the rules of the Scheme in relation to adjudications arising under them. Therefore this position is likely in practice to affect many contracts and disputes arising out of them. In the circumstances it is best practice to avoid referring multiple disputes to the same adjudicator under the same contract at the same time.
Next week we will look at issues surrounding the adjudicator's terms and conditions. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.
Should you require any assistance with adjudication, we have a large and experienced construction team who regularly deal with adjudications and we would be happy to discuss the process with you