1996 statutory scheme for adjudication (the “Scheme”) must apply in its entirety. That correspondence prompted Maher to make a second referral to adjudication but this time under the Scheme. This turned out to be a crucial point in the proceedings. This was because, at face value, the wider wording of the types of dispute which can be referred to adjudication, and that applies under NEC3 Option W2, is not replicated in the Scheme’s provisions. The Scheme instead provides that it is [only] disputes “under” a construction contract that may be referred to adjudication. As is typically the case, no adjudication provisions were expressly agreed as part of the alleged settlement.
The Parties’ Main Submissions
The arguments before the Court referenced various case law as to: (a) the effect of differently worded dispute resolution provisions, and (b) instances where challenges to the right to adjudicate construction contract settlements have been successful, on the particular facts. There were competing authorities. Themes of these cases included that:
1. The Courts have drawn a distinction between dispute resolution provisions which refer only those disputes which may arise regarding the rights and obligations which are created by the contract itself [i.e. disputes “under” a contract], and those which show an intention to refer a wider category of disputes [i.e disputes “in relation to” or “in connection with” a contract].
2. Construction contract settlement agreements may be analysed either as a variation of the related construction contract or as a standalone agreement. If the Court’s analysis is of the former type, then where a narrower dispute resolution provision applies, the dispute falls within the four corners of the dispute resolution provision. If however the settlement agreement is analysed as a standalone agreement it will be important that the dispute resolution provisions are more widely worded.
3. In relation to arbitration clauses, the starting point should be the assumption that “the parties as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction”. This dicta is taken from the House of Lords decision known as The Fiona Trust.
The Court’s Decision
The Court’s decision was heavily influenced by its view as to the overall merits and the undesirable consequences of holding that settlement agreements, in relation to construction contracts which contain adjudication provisions, may not themselves be subject to the right to adjudicate.
The Court’s view was that the reference in Murphy order’s to the TCC as a nominating body did not trigger the Scheme’s adjudication provisions operating – instead the selected NEC3 Option W2 survived. It stated in bald terms its view that “Murphy’s position in this case is very unmeritorious.” What irked the Court was that as a result of Murphy persuading Maher – incorrectly in the Court’s view – that it needed to refer its dispute to adjudication under the Scheme, Murphy was in consequence presented with a platform to jurisdictionally challenge Maher’s ability to adjudicate at all. This in circumstances when such a jurisdictional challenge would not have been available to it by reference to Option W2. Murphy’s Counsel conceded before the Court that a claim based on the alleged settlement would qualify as a dispute “arising under or in