Separate Issues Severable When Dispute Not Crystallised

Construction disputes are common and the use of arbitration proceedings represents an attempt to make resolution of such disagreements easier. However, arguments about the legal right of the arbitrator to decide issues (‘jurisdiction’) are also common. In a recent case involving a contractor and subcontractor, a dispute about jurisdiction became more complex because of the addition of ‘new’ items to those which were already the subject of the arbitration after the arbitration had commenced.



The subcontractor had applied for an interim payment under the contract and the contractor had certified a much lower value than was claimed. The subcontractor did not agree with the certificate and commenced adjudication proceedings, issuing the appropriate notice.



The contractor attempted to argue that the adjudicator had no jurisdiction to decide the matter until such time as the date for payment of the certified sum had passed – i.e. the dispute had not ‘crystallised’. This argument was rejected.



However, while the adjudication proceedings were in progress, two further items were added to the dispute. These, the High Court held, must be ‘split’ from the adjudicator’s decision on the earlier work. However, the fact that the two sets of arguments had to be dealt with separately did not deprive the adjudicator of jurisdiction. The adjudicator’s decision held good except insofar as it related to the new items, which must therefore be adjudicated separately.