Multiple adjudications are permitted provided they do not relate to the same, or substantially the same, dispute. A referring party cannot make good in a later adjudication the shortcomings in its claim in an earlier adjudication. Doing so would permit it to have two bites at precisely the same cherry. Care should therefore be taken to ensure that your best case is presented at first pass.
Paddison referred to adjudication a claim for an extension of time up to the date of practical completion and loss and/or expense for that period of delay. The adjudicator granted the full extension of time. However, he decided that whilst some money over and above the sum already certified may be due, no further money would be awarded because the claim was "extravagant and exaggerated" and lacked any reliable evidence in support. The adjudicator sought to grant Paddison leave to pursue the claim via a further adjudication if they wished.
The court was asked to decide whether Paddison was able to pursue its loss and/or expense claim in a second adjudication. It found that the proper interpretation of the adjudicator's decision was that Paddison was not entitled to any money over and above that already certified. It said that the adjudicator had no jurisdiction to grant Paddison the right to pursue its claim in another adjudication.
This case was not one in which the adjudicator was unable - for example, due to time constraints - to reach a decision within the available time, thus leaving the parties free to adjudicate the same dispute again. The adjudicator gave express consideration to Paddison's claim and decided - on the basis of the information provided to him - to refuse to award it any money.
Paddison was therefore prohibited from pursuing its second adjudication for loss and/or expense for the whole period up to practical completion because it was adjudged to be the same or substantially the same dispute as the first adjudication. The court held that "to construct a dispute capable of reference to a fresh adjudication based on [Paddison's employer's] refusal to reassess a claim which is the same as that previously submitted, save with regard to calculation, on material previously supplied would be artificial and contrived."
It may, however, be third time lucky for Paddison. Whilst it will be temporarily bound by the adjudicator's decision that it is not entitled to any further money, it is able if it wishes to have the dispute finally determined by litigation or arbitration. Although this will cost Paddison a lot more, its reasonable costs will be recoverable in the event that it wins.
Reference: Birmingham City Council v Paddison Construction Limited
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 01/10/2008.
