Emcor Drake & Scull Ltd v Costain Construction Ltd & Skanska Central Europe AB (t/a Costain Skanska Joint Venture)

An adjudicator may determine a later extension-of-time dispute even where an earlier adjudication concerned related delay events, provided the later adjudicator respects the earlier decision on points actually decided.

An earlier refusal to grant an extension on a particular ground does not necessarily confirm the existing completion date or decide that the contractor is entitled to no extension for other causes. The reuse of documents in successive adjudications is not, without more, an abuse of process.

The claimant, a principal sub-contractor, sought enforcement of an adjudicator’s decision granting an extension of time and payment under clause 11.7 of the DOM/2 sub-contract. An earlier adjudication had rejected a claim based on delay to bedroom works.

The defendants argued that the earlier decision had exhausted the issue, that the second adjudicator had reconsidered matters already decided, and that the volume of repeated documentation made the second adjudication abusive. The central issues were the scope and effect of the first adjudication and whether the second decision was enforceable.

1. The adjudicator’s decision was enforceable. The claimant’s application succeeded.
2. An earlier adjudication binds a later adjudicator on a point actually decided between the parties. The earlier adjudicator had decided only that the claimant had not established entitlement to an extension based on critical delay to the bedrooms. He had not decided that the claimant was entitled to no extension of time for any other cause.
3. The earlier decision did not amount to confirmation of the previously fixed completion date under clause 11.7. It simply declined to grant an extension on the particular ground advanced.
4. The later adjudicator was entitled to treat the earlier decision as establishing, for the purposes of the second adjudication, that the claimant had caused some delay in relation to the bedrooms, while concluding that that delay was not critical. Considering related facts and documents did not itself trespass on the earlier decision.
5. The proposition that clause 11.7 permitted only one extension, and therefore only one adjudication, was a non sequitur. The later dispute was capable of being adjudicated.
6. The inclusion of substantially the same documentation in successive adjudications did not, without more, constitute an abuse of process. The need to respond quickly to substantial paperwork is a recognised hazard of adjudication, but repetition alone was insufficient.