Emcor Drake & Scull Ltd v Costain Construction Ltd

The fact that the sub-contractor included within its notice of referral in the second adjudication facts, matters and documentation (exceeding 4,000 pages) considered by the adjudicator in the first adjudication was not unfair and an abuse of the adjudication process
 
EMCOR DRAKE & SCULL LTD v COSTAIN CONSTRUCTION LTD

Technology and Construction Court
His Honour Judge Richard Havery QC
29 October 2004
 
The project was the refurbishment and alteration of a hotel. The sub-contractor made three claims for extensions of time to be granted under clause 11.7 of DOM/2. The adjudicator in the first adjudication decided that he should not make the requested declaration that the sub-contractor was entitled to an extension in respect of the first claim. The sub-contractor referred its third claim to a second adjudication. The adjudicator in the second adjudication decided that the sub-contractor was entitled to an extension of time and to payment of a specified sum.
 
The contractor contended that the decision in the first adjudication encompassed and decided the first claim for an extension and that the adjudicator in the second adjudication considered facts and matters that had already been considered by the adjudicator in the first adjudication. Judge Havery rejected this contention. However, the contractor had one last contention to prevent the enforcement of the adjudicator's decision in the sub-contractor's favour in the second adjudication. This was that the sub-contractor included within its notice of referral in the second adjudication facts, matters and documentation (exceeding 4,000 pages) considered by the adjudicator in the first adjudication and that this was unfair and an abuse of the adjudication process
 
Judge Havery also rejected this last contention. He did so on the basis that the necessity to respond quickly to vast quantities of paperwork was one of the well-known hazards of the adjudication process whether or not that paperwork appeared in two successive adjudications.
 
Advice Note
There is increasing disquiet that adjudication is not appropriate for large scale disputes. One reason for this disquiet is the huge amounts of paperwork that must be considered by the adjudicator and the defendant within the very short timescale (28 days) for the adjudication process to be begun and completed (as laid down by Parliament in the Construction Act). Judge Havery in rejecting the contractor's contention in this case that this was unfair made the very important general observation that such challenges will be very difficult, if not impossible, to sustain in the future.
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