Brown & Anor v Complete Buildings Solutions Ltd [2016] EWCA Civ 1
This was a Court of Appeal decision concerning a short issue as to whether an adjudicator had jurisdiction to decide a dispute between the parties, in circumstances where it was alleged that the dispute referred to him had already been determined in a previous adjudication.

The contract between the parties was a JCT Minor Works Building Contract (2011 Edition) dated 22 December 2011 under which the respondent was to demolish a house and use the site to build a new one, with the price agreed at £496,578. Practical completion of the works was certified on 9 April 2013.

The architect then proceeded to issue a Final Certificate on 30 October 2013, which was made out of time and was later determined to be invalid. The respondent had purported to rely on the late certificate and had sent a letter on 20 December 2013 claiming payment due of £115,440.46. The appellant refused to pay the sum claimed.

The respondent therefore referred the dispute to adjudication on the basis that the 20 December letter claiming payment under the Final Certificate was in fact a payment notice that, since the appellant had not issued a payless notice, would stand as the sum now due. Unsurprisingly, the adjudicator determined that the 20 December letter could not be a payment notice because it was not clear on the face of the letter that it was a payment notice issued pursuant to clause 4.8.4.1 of the contract. As no payment notice had been served, no sum was payable.

On April 1 2014, the same day that the adjudicator’s decision was given, the respondent sent another letter to the appellant which made clear on its face that it was a payment notice issued in accordance with the terms of the contract. Again, the appellant did not issue a payless notice and refused to pay the respondent, and so the dispute was referred to adjudication.

The appellant disputed the jurisdiction of the adjudicator on the basis that the same or substantially the same dispute had already been determined in a previous adjudication. The adjudicator found in favour of the respondent and ordered the appellant to pay the amount contained in the payment notice. The appellant attempted to resist enforcement proceedings in the TCC on the same basis that the dispute had already been determined in an earlier adjudication, but the TCC found in favour of the respondent. The appellant therefore appealed to the Court of Appeal.

The Court of Appeal took into account the recent case of Matthew Harding (trading as M J Harding Contractors) v. Paice and Springhall in which the TCC had considered the issue of whether a dispute was substantially the same as one determined in an earlier adjudication. Although it was a question of fact and degree in each case, the court had to look at what was actually determined in the first adjudication and see if this was substantially the same as the dispute referred in the second adjudication.

In this instance, it was clear that the two adjudications were about different disputes: the first adjudication had to determine whether the 20 December letter could stand as a valid payment notice and the second adjudication had to determine whether the April 1 letter sent after the first adjudication was a valid payment notice. The second adjudication had not raised a single issue regarding the 20 December letter or the invalid Final Certificate. It was, self-evidently, about an entirely different dispute.

The appeal was therefore dismissed.

This article was written and published on the internet by Hardwicke in March 2016.

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