Birmingham City Council V Paddison Construction Ltd

The dispute referred to the adjudicator in the second adjudication was the same or substantially the same as the dispute referred to the adjudicator in the first adjudication
 
BIRMINGHAM CITY COUNCIL V PADDISON CONSTRUCTION LTD
 
Technology and Construction Court
Her Honour Judge Frances Kirkham
25 September 2008
 
The project was construction work for a new community and training centre. A dispute arose with regard to delay to the project which was referred to adjudication by the contractor. Whilst the adjudicator held in his decision that the contractor was entitled to a full extension of time, he did not award any monies in respect of the contractor's associated loss and expense claim. The contractor contended that no decision had been made in relation to its loss and expense claim. The contractor served a second notice of adjudication in which it sought reimbursement of loss and expense or damages. A second adjudicator was appointed who refused to resign on the ground that the dispute referred was the same as that which the adjudicator in the first adjudication had decided.
 
The local authority sought declarations that (i) The dispute referred to the adjudicator in the second adjudication was (substantially) the same as that which had been referred in the first adjudication (ii) The adjudicator in the first adjudication made a decision on the dispute as to the contractor's loss and expense claim and (iii) The adjudicator in the second adjudication had no jurisdiction to act as adjudicator and therefore had to resign.
 
Judge Kirkham granted these declarations. The dispute referred to the adjudicator in the second adjudication was the same or substantially the same as the dispute referred to the adjudicator in the first adjudication on the basis that (i) The fact that the sums claimed for loss and expense differed between the two adjudications did not render the employer's refusal to consider the second claim an essentially different dispute (ii) The only differences between the two claims (apart from the sums claimed) were the methods of calculation but those methods were derived from the same supporting documentation (iii) The fact that a claim was made for damages for breach of contract in the second adjudication whereas no such claim was made in the first adjudication did not render the dispute in the second adjudication materially different. The circumstances in the instant case were those described by Dyson LJ in Quietfield v Vascroft Construction (2007), namely where the referring party (the contractor in the instant case) sought (merely) to make good in the second adjudication the shortcomings in its claim in the first adjudication.
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