Birmingham City Council v Paddison Construction Ltd

An adjudicator who considers a claim and refuses payment has made a decision, even if the decision gives inadequate reasons or suggests that the claim may be pursued in a later adjudication. A second adjudication cannot ordinarily be used to advance the same or substantially the same dispute by presenting the claim in a different form, seeking a different sum, or relying on a different calculation of substantially the same evidence. The question whether disputes are substantially the same is one of fact and degree. The court should guard against successive adjudications which give a party a second opportunity to pursue the same claim.

Birmingham City Council engaged Paddison Construction Ltd to carry out construction work. In a first adjudication, the adjudicator awarded an extension of time but refused to award further loss and expense, while stating that Paddison could pursue the claim in a further adjudication.

Paddison commenced a second adjudication concerning loss and expense and related damages. Birmingham City Council sought declarations under Part 8 that the second dispute was the same or substantially the same as the first, that the first adjudicator’s decision was temporarily binding, and that the second adjudicator had no jurisdiction.

1. The first adjudicator made a decision. The whole of section 6 of the adjudicator’s decision showed that he had considered the loss and expense claim and decided that no further payment was due. The word therefore did not alter that conclusion. Conditions 23.1 and 26.2 of the adjudication scheme required a decision and made it temporarily binding.
2. The adjudicator’s suggestion that Paddison could pursue the claim in another adjudication was misguided. He had no power to grant such permission, particularly without warning the parties that he might decline to decide the claim. The authorities concerning complex claims did not alter the conclusion because this was not a case in which the adjudicator had concluded that he could not make a decision.
3. The second dispute was the same or substantially the same dispute. Both adjudications concerned loss and expense for the whole period to practical completion, based on the same 119-day extension. The different sums, reports and methods of calculating head office and overhead recovery did not create a materially different dispute where the supporting material was essentially the same.
4. The alternative claim for damages was materially coextensive with the loss and expense claim and did not change the character of the dispute. The question was one of fact and degree. The approach in Quietfield Ltd v Vascroft Construction Ltd was applicable: later material which merely sought to remedy shortcomings in the earlier claim generally concerned substantially the same dispute.
5. Allowing the second adjudication would give Paddison a second opportunity to pursue the same claim. Birmingham City Council was therefore entitled to the declarations sought. Mr Jensen had no jurisdiction and had to resign; any decision reached would be a nullity and unenforceable.