Same dispute, different adjudication

14-11-2011 09:45

In Carillion Construction Ltd. v Stephen Andrew Smith [2011] EWHC 2910 (TCC) (10 November 2011) the court was asked to consider whether a dispute referred to adjudication by the defendant in 2011 was in substance the same as a dispute referred to adjudication in 2003.

A dispute may only be referred to adjudication once. More than one adjudication is permissible, provided a second adjudicator is not asked to decide again that which the first adjudicator has already decided. In this case the claimant argued that the defendant was seeking to have an adjudication, conducted in 2003, considered again by a different adjudicator in 2011.

The difficulty faced by the defendant was that the dispute referred to adjudication in 2003 was lost, partly on the basis that the defendant’s claim for extension of time and/or loss and expense was not made out. The defendant’s right to a full extension of time was established but the adjudicator dismissed the money claim because it was not proven. In contrast, the dispute referred to adjudication in 2011 was successful, largely on the basis of information and documentation submitted to the adjudicator in 2011 that was not submitted to the adjudicator in 2003, resulting in an award for the defendant of about £800,000.

If the court found that the same dispute had been referred to adjudication in 2011 as that which had been referred to adjudication in 2003, the 2011 adjudicator would have no jurisdiction to consider the dispute and the 2011 adjudication award would be unenforceable. Such a decision might leave the defendant with no remedy at all as (amongst other difficulties his claim faced) his claim may be statute barred due to the expiry of the relevant limitation period.

Mr Justice Akenhead held that the dispute referred to adjudication in 2011 was the same as that referred to adjudication in 2003 and therefore the adjudicator in 2011 did not have jurisdiction to adjudicate in 2011.  Mr Justice Akenhead gave a number of factors that the Court should consider in forming a view as to whether the same or substantially the same dispute has been referred to adjudication before.  These included a consideration of:

“what is and was the ambit and scope of the disputed claims which is being and was referred to adjudication. That of course will vary from dispute to dispute. One has however to take a reasonably broad brush approach in determining what the referred claims were. The reason for this is to avoid repeat reference to adjudication of what is essentially the same dispute.”

Further information regarding this case and the factors considered by Mr Justice Akenhead will be in our next newsletter and a link to the case report is below:

http://www.bailii.org/ew/cases/EWHC/TCC/2011/2910.html

If you would like any further information on this subject, please contact Philip Vickers.

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