The claimant, EDS, was a principal subcontractor carrying out the design and installation of electrical services at the Great Western Royal Hotel, Paddington. Costain Skanska Joint Venture was the contractor. The contract was the DOM/2 1981 edition including some amendments. EDS sought to enforce the decision of an adjudicator made on 1 July 2004. He decided that EDS was entitled to an extension of time and payment of the sum of £201,069.34 plus VAT.
A previous adjudicator’s decision on 8 May 2003 decided that EDS was not entitled to a declaration of an entitlement to an extension of time. EDS had made three extension of time claims. The first related to bedrooms, the second subsumed the first but provided additional events. The third was a revised claim based upon events and material comprised in the previous claims. The first adjudicator’s decision related to the first extension of time claim. The second decision, and the one that was the subject of this judgment, related to the final extension of time submission.
Joint Venture refused to pay on the basis that the adjudicator’s decision was made (1) without jurisdiction, (2) in excess of jurisdiction or (3) the referral to adjudication was an abuse of the adjudication process. Essentially, the joint venture was arguing that clause 11.7 of the contract provided only one opportunity to grant an extension of time. Second, that the facts and matters relied upon in the adjudication had already been adjudicated in the first decision. As a result, the second adjudicator had exceeded his jurisdiction. Third, the first adjudicator had already decided that EDS was not entitled to any extension of time. Finally, the second adjudication was based almost entirely on facts, matters and documents that had been considered in the first adjudication, and therefore was an abuse of the adjudication process.
Reference
HHJ Havery QC came to the conclusion that the first adjudicator did not decide that EDS was not entitled to an extension of time, but decided that EDS had merely not discharged the burden of showing that they were entitled to an extension of time. The second adjudicator did consider the facts and matters considered by the first, but that was not objectionable. The second adjudicator did not trespass into the decision made by the first, but considered the extension of time claim before him and made a decision about the material included within the reference. The decision was therefore valid, and the need to respond quickly to large amounts of paperwork could not be considered an abuse of process. The decision was therefore enforced.
*Full case details
Emcor Drake & Scull Ltd (formerly known as Drake & Scull Engineering Ltd) vs (1) Costain Construction Ltd (2) Skanska Central Europe AB (t/a Costain Skanska JV), 29 October 2004, TCC, HHJ Richard Havery QC, [2004] EWHC 2439 (TCC)
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Postscript
Traditionally all disputes might be dealt with in an arbitration or in litigation after the completion of a project. This case is of interest because it is possible to have multiple adjudications during the construction of and then after the completion of a project. The result is that there might be some overlap between the subject matter of a dispute that has been referred to adjudication, with the result that a subsequent adjudication is not enforceable because the issue has already been decided in a previous adjudication.
Here, the judge decided that a revised and more detailed extension of time claim had not already been decided; not just because the contract permitted more than one request for an extension of time, but also because the first adjudicator had not considered the extension of time because he came to the conclusion that the claim was not made out at all.
