Skanska Construction UK Limited V The ERDC Group Limited & anr
Scotland, Court of Session, Outer House
28 November 2002
The sub-contractor referred a dispute to adjudication relating to an interim payment application. The dispute concerned the sub-contractor’s contention that further specified sums should be paid to it in satisfaction of its claim for direct loss and expense. The sub-contractor stated in its referral notice that the contractor had only paid a part of its total claim and that it sought payment of the balance. The adjudicator decided that the sub-contractor was not entitled to payment of any sum on the basis that the sub-contractor had provided insufficient information, specification and evidence. The sub-contractor thereafter began a second adjudication. The amount in dispute again related to the sub-contractor’s alleged entitlement to loss and expense. The individual items making up the claim included most of the heads of claim advanced in the first adjudication and many of the sums themselves were the same as in the first adjudication. The adjudicator in the second adjudication refused the contractor’s request for him to resign on the ground that the dispute in the second adjudication was (substantially) the same as the dispute in the first pursuant to the contractual provision which was in similar form to paragraph 9(2) of the Scheme for Construction Contracts which required the adjudicator to resign in such circumstances. The contractor issued a petition for judicial review and sought an order preventing the second adjudication from proceeding.
Lady Paton refused to order that the second adjudication should be prevented from proceeding. it was not the case that the dispute referred in the second adjudication was substantially the same as the dispute in the first adjudication insofar as the fundamental nature and parameters of the disputes were different. In particular a different contractual stage had been reached, different contractual provisions applied and different considerations and perspectives might apply.
This decision concerns a claimant bringing similar claims in two adjudications. It emphasises that the courts will look closely at the nature of the claims being made and will allow a set of claims to proceed in a second adjudication where it is clear, as in the instant case, that they are based on different contractual provisions than those claims in the first adjudication.