Watkin Jones & Son Ltd V Lidl UK GMBH (Part II)
Technology and Construction Court
His Honour Judge Humphrey LLoyd QC
27 December 2001
The contract incorporated JCT 98. The adjudicator in the first adjudication decided that the contractor should be paid the full amount of what the adjudicator held was the contractor’s interim payment application on the ground that the employer had failed to serve any notice of withholding under clause 30.3.3 or .4 with the result that clause 30.3.5 (automatically) came into operation and required the employer to pay the full amount of the payment application. The employer began a second adjudication and described the dispute as relating to the properly calculated (revised) sum which the contractor should have applied for and sought a decision that the sum properly payable under the application was such revised sum. The adjudicator resigned on the ground that he did not have jurisdiction to determine the dispute. Another (third) adjudicator was appointed who took the view that he did have jurisdiction. The contractor contended that this (third) adjudicator did not have jurisdiction and applied for a declaration to this effect.
Judge LLoyd granted the declaration. The contractual machinery of JCT 98 was precise and meant that if the employer did not give a notice under clause 30.3.3 or .4, the amount of the interim payment application had to be paid in full. The employer’s attempt to avoid its failure to give a notice under clause 30.3.3 or .4 by trying in the first adjudication to characterise the application as one for a final account was (rightly) rejected by the first adjudicator. It was not open to the employer to go back over the ground covered in the first adjudication in the subsequent adjudication by seeking to argue in the subsequent adjudication that the valuation which ought to have been the subject of the payment stemming from the payment application was other than that applied for by the contractor insofar as the route by which that contention could and should have been raised was that provided for by clause 30.3.3.
A disappointed defendant will not be able to have a “second bite at the cherry” by instigating a second adjudication if the subject matter of the dispute referred is in effect the same as the dispute already decided.