Quietfield Ltd v Vascroft Contractors Ltd

Successive adjudications concerning extensions of time are permissible where they arise from separate disputes based on different grounds. A contractor may also rely on an entitlement to an extension of time as a defence to a claim for liquidated damages, even if that defence was not previously notified. The exception is where the alleged entitlement has already been considered and rejected in an earlier adjudication. An adjudicator who refuses to consider a substantially different extension-of-time case breaches natural justice. The resulting decision will not be enforced.

Quietfield, the employer, sought summary judgment to enforce an adjudicator’s award of liquidated damages for Vascroft’s delay. In an earlier adjudication, Vascroft had relied principally on two applications for extensions of time, but failed to establish causation. In the later adjudication, Vascroft relied on a substantially different, detailed analysis of delay and critical path issues as a defence to the liquidated damages claim. The adjudicator refused to consider that defence, treating the earlier decision as conclusive. The issue was whether that approach was correct and whether the later decision could be enforced.

1. Successive adjudications. Under section 108 of the Housing Grants Construction and Regeneration Act 1996 and paragraphs 9 and 23 of the Scheme, the same dispute cannot be referred to adjudication again once determined. However, where the contract permits successive applications for extensions of time on different grounds, each separate dispute may be referred to a further adjudication.
2. Same grounds. Successive applications based on the same grounds cannot generate a new adjudication. The earlier adjudicator’s decision remains binding until displaced by court judgment, arbitration or agreement.
3. Defence to liquidated damages. In an adjudication concerning a claim for liquidated damages for delay, the contractor may rely on any available entitlement to an extension of time, whether or not that defence was notified when the dispute arose. The principle in William Verry (Glazing Systems) Ltd v Furlong Homes Ltd [2005] EWHC 138 (TCC) was applied.
4. Application to the case. The detailed analysis in Appendix C was substantially different from the two applications considered in the first adjudication. It identified additional causes of delay and addressed the critical path in a structured way. The earlier adjudication therefore did not determine the defence advanced in the later adjudication.
5. The adjudicator ought to have considered Vascroft’s substantive defence. His refusal to do so breached natural justice, and the award could not be enforced. Quietfield’s application for summary judgment was dismissed. Judgment was to be entered for Vascroft, subject to submissions on the precise form of order.

not stated in the judgment.