Birmingham council (“BCC”) engaged Paddison Construction (“Paddison”) to undertake construction work for a new community and training centre in Birmingham. The contract provided for a completion date of 24 February 2006 which was revised to 17 April 2006. Practical completion was certified as at 23 June 2006. Paddison alleged that BCC was responsible for the delay in completion and sought, among other matters, a full extension of time and loss and/or expense.

Paddison referred the dispute regarding responsibility for delay and the financial consequences of such delay to adjudication. After agreeing to several requests for an extension of time, the adjudicator decided that Paddison was entitled to an extension of time for the full period and that BCC should repay the LADs which had been withheld in the sum of £27k and £25k in respect of variations.

In relation to the claims for loss and/or expense, the adjudicator said that these were “extravagant and exaggerated”. However, he did accept that some of the claim may be valid and went on to say that he “would grant the contractor leave to pursue this claim via a further adjudication if they so wish”.

The adjudicator deemed that it was necessary to hold a “dedicated” adjudication to consider the loss and/or expense claim given the tight timescales associated with adjudication. He also he considered that a third-party quantity surveyor would need to be appointed in order for the claim to be analysed in detail.

Paddison said that this meant that no decision had been made in relation to their claim for loss and/or expense. Accordingly, they required BCC to assess their entitlement to loss and/or expense based upon the extension of time which had been awarded. BCC considered that the adjudicator had decided that Paddison was entitled to nothing further by way of loss and/or expense. Paddison then served a second notice of adjudication, seeking reimbursement of loss and expense or, alternatively, damages.BCC argued that the adjudicator should resign on the ground that the dispute referred to him was the same as that which the first adjudicator had decided. The adjudicator however refused to resign.

Accordingly, BCC commenced Part 8 proceedings seeking declarations to the effect that the dispute referred was the same, or substantially the same, as that which had been previously referred.

1 Did the adjudicator make a decision with respect to Paddison’s loss and/or expense?

2 Is the dispute referred to the second adjudicator the same, or substantially the same, as that referred in the first adjudication?