Case No. HT-08-331

3.PTB contended that ROK failed to make payments or had made late payments in respect of applications for payment that PTB had submitted to ROK. On 11 August 2008 PTB served a notice of adjudication on ROK. Attached to that notice was a statement of dispute, together with a document which had the title: “Anticipated final account”. PTB claimed a sum of £376,224 for works completed up to 11 August 2008. 4.In response, on 13 August 2008, ROK said this:“Contrary to your letter and attachments, we would confirm the dispute which you are attempting to refer does not exist and your submission is flawed and unfounded. Furthermore, any attempt on your part to continue with this action will ultimately lead to wasted time and resources on your part, as well as our pursuing your company for our costs in dealing with this matter. With respect, we would refer you to our previous submissions and content of our recent meetings whereby we have confirmed to you our view that your works are grossly over-valued and you have attempted to misrepresent the extent of actual works carried out and completed. This, as you have been made aware, has and is causing ROK some difficulties and embarrassment with our client, although we acknowledge that this is a matter for us to resolve directly with Harlow District Council. We would also refer you to the email issued by your Mr Jerry Twum-Asare dated 26th June 2008 which we aver corroborates and acknowledges your over-valuation.”5.There followed correspondence in which ROK reaffirmed that there was no dispute. They also said that, if there was a dispute, they would not be prepared to accept the adjudicator proposed by PTB and suggested that PTB should apply to a nominating body for an appointment. On 20 August 2008, PTB served a second notice of adjudication on ROK. They attached a statement of dispute, together with an application document with the title “Final account”, being an application for payment expressed as a “Final account for works completed on the above reference project in the sum of £411,465.94”. PTB applied for an appointment to the Chartered Institute of Arbitrators. They appointed the Adjudicator, Mr Peter Barnes, who wrote to the parties on 22nd August 2008. 6.On 27 August 2008, PTB sent the Adjudicator a written statement of dispute. ROK also wrote to the Adjudicator on 27 August, attaching the notice of adjudication dated 11 August 2008 and subsequent correspondence up to 14 August 2008. They then said:“As you will hopefully glean from such correspondence, there is no dispute crystallised and, as such, there can be no formal adjudication. Furthermore, ROK would confirm having received no referral notice not later than seven days from their receipt of the notice of adjudication (11 August 2008).”7.They then invited the Adjudicator to resign. PTB wrote to the Adjudicator and ROK pointing out that the notice of adjudication was that dated 20 August 2008. On 28 August 2008, ROK confirmed that they had received that notice of adjudication. The Adjudicator then wrote to the parties on 28 August 2008 and dealt with two challenges to jurisdiction. He stated that the referral on 28 August 2008 was within time given that the notice of adjudication was dated 20 August and there was a bank holiday on 25 August 2008. In relation to ROK's contention that there was no crystallised dispute, he concluded that a dispute had existed in respect of the alleged non-payment of amounts due to the referring party prior to the notice of adjudication dated 20 August 2008. He therefore confirmed that he intended to proceed with the adjudication and he concluded by asking PTB to arrange for a full copy of the contract between the parties to be provided by 29 August 2008. Documents were then provided to him on that date. 8.On 4 September 2008 ROK served a response in which they took a number of points on jurisdiction. They stated at paragraph 1.2 that:“In making this response and participating in this adjudication, ROK reserves its position as to the jurisdictional matters referred to in section 2 below and does not confer upon the adjudicator any power or authority that he does not have otherwise have.”9.In section 2 they referred to the following points on which they challenged jurisdiction: “(a) Legal entity; (b) No written subcontract; (c) No crystallised dispute; (d) Wrong principles of nomination; (e) Submission of new information and (f) Invalid notice of adjudication and referral.”10.ROK also attached several appendices and set out an ascertainment of PTB's application in the gross sum of £722,957.18, without prejudice to the challenge to jurisdiction. ROK also said that the Adjudicator's powers were limited to addressing the remedies sought and that no other amount could be awarded other than that set out in the statement of dispute. PTB served a counter-response and wrote correspondence dealing with the points raised by ROK. 11.In a letter dated 18 September 2008, the Adjudicator dealt with and rejected the jurisdiction challenges (a) to (f) and the contention his powers were limited to the remedies sought. The adjudication then continued and the Adjudicator made his decision on 1 October 2008 in which he decided that ROK should pay PTB the sums now claimed in these proceedings. 12.At some date afterwards ROK paid the Adjudicator the sum of £11,638.38 in respect of his fees and expenses as set out in the decision. There was subsequently concern by PTB that, as Mr Hough says in his statement on behalf of PTB:“The challenge on the basis of ‘No crystallised dispute’ would be the source of considerable argument and expense in any enforcement proceedings.”13.PTB therefore issued a new notice of adjudication dated 15 October 2008 and applied for and obtained the appointment of a new adjudicator, Mr Peter Brooker, on 20 October 2008. When ROK received a letter on 21 October 2008 from Mr Brooker, they wrote to him in the following terms:“The exact same dispute has been the subject of a previous adjudication commenced by PTB. It was decided by Mr Peter Barnes. We enclose a copy of the previous adjudicator's decision dated 1 October 2008. Paragraph 17 of that decision confirms that the dispute was in relation to payment of the final account dated 20 August 2008. The adjudicator decided, amongst other matters, that we should pay PTB the sum of £314,242.18. Given that a dispute in relation to payment of the final account dated 20 of August 2008 has already been referred to adjudication, it cannot be the subject of a second adjudication. If PTB do not agree with the existing adjudicator's decision, their only remedy is to refer the dispute to litigation. In the circumstances, please confirm that you will resign your appointment as adjudicator. For the avoidance of doubt, we have raised a number of jurisdictional arguments in the previous adjudication. We consider that our jurisdictional arguments have merit and so we have not paid PTB the sums awarded. In the unlikely event that you decide to continue to act as adjudicator, we reserve the right to raise these additional arguments in this reference.”14.ROK wrote further on 23 October 2008 and said:“As referred to in our previous letter, we have a number of jurisdictional challenges. However, the primary point is that the referring party has asked you to value its final account. This is exactly the same dispute that was decided by the previous adjudicator. We admit that we have not paid the sums awarded by the previous adjudicator because we do not believe that his decision is enforceable. For the avoidance of doubt, to the extent that PTB are asking you to either enforce or challenge the first decision, you have no jurisdiction to do so.As regards the matters set out at paragraph 2 of the notice of adjudication, PTB may not refer multiple disputes in relation to several interim applications for payment to adjudication. In any event, given that the final account has been the subject of a previous adjudication, the position at the interim stage is redundant. We fail to see the relevance of the case referred to by PTB. The first adjudicator issued a decision in PTB's favour. Once again, we respectfully submit that you do not have jurisdiction given that the dispute has already been the subject of a previous adjudication.”15.On receipt of those letters and a letter from PTB, Mr Brooker said this:“In the matter referred to me, Mr Barnes has already taken that second step and decided what sum was in fact due. He has done this because the wording of the dispute referred to him had, in his opinion, sufficient latitude in its wording to give him the jurisdiction so to do. Thus, it is my opinion that the dispute referred to me and the remedy sought is already the subject of a previous adjudicator's decision. Apart from this point, the only difference between the previous referral and the dispute referred to me are that the nature of the dispute and remedies sought have both been expanded and the responding party, which was previously cited as ROK Maintenance, is now cited as ROK Building Limited. In my opinion, the expanded wording merely adds detail in terms of dates, references and description, but does not change the issues in dispute from those already adjudicated upon. As to the name of the responding party, I take note of this point, which was raised as a jurisdictional challenge in the first adjudication. However, I do not consider that differentiating ROK Maintenance from ROK Building Limited is a significant enough step to consider the subject of this referral to be a fresh dispute.In the light of the above points and careful consideration, I respectfully resign from the nomination to act in this matter.”