Carillion Construction Ltd. v Stephen Andrew Smith

In serial adjudications, the question is whether the later reference concerns the same or substantially the same dispute as an earlier one. The court must examine the substance and essence, or ambit and scope, of each dispute. A broad-brush approach is appropriate to prevent repeat references concerning the same underlying claim.

Additional evidence, improved arguments, different quantification, greater detail or a larger claim will not usually create a new dispute. The court should consider the causes of action relied upon, the parties’ expressed motivation and the material submitted in the earlier adjudication. The adjudicator has no jurisdiction where the later dispute is, in substance, the same dispute previously decided.

Carillion sought declarations concerning the jurisdiction of an adjudicator appointed in a third adjudication arising from works at Broadgreen Hospital. The first adjudication determined elements of the final account. The second adjudication considered claims for an extension of time and delay and disruption costs, rejecting the monetary claim but granting an extension of time.

Mr Smith then commenced the third adjudication personally, advancing a substantially enlarged and more detailed claim based on further analysis of documents disclosed during the second adjudication. Carillion contended that the third reference repeated the dispute already determined. The central issue was whether the dispute referred in the third adjudication was the same or substantially the same as the dispute resolved in the second adjudication.

1. Declaration granted. The third adjudicator had no jurisdiction to resolve the dispute referred to him because it was the same or substantially the same dispute as that determined in the second adjudication.

2. In applying the approach in Quietfield Ltd v Vascroft Construction Ltd [2006] EWCA Civ 1737 and the summary in Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333 (TCC), the court examined the ambit, scope, substance and essence of both references. The notices and referrals provide the starting point, but the court may also consider the preceding exchanges and the issues raised during the adjudication.

3. The relevant comparison is not defeated by additional evidence, new arguments, more detailed particulars, different quantification or a larger claim. Those matters ordinarily concern the proof or presentation of the dispute rather than its essential identity. The court should also consider whether substantially the same causes of action are relied upon.

4. The second and third claims both concerned delay and disruption allegedly caused by Carillion, the same broad financial heads and the same period of delay. The third claim’s extensive documentary analysis, re-quantification of labour and plant costs, reliance on breach of contract and claim for valuation costs did not alter the essential dispute. The alleged failure to value the claim was parasitic upon the underlying entitlement and added no substantive difference.

5. The earlier adjudicator’s decision remained binding even if it was wrong in fact or law. The appropriate route for final determination was the agreed arbitration process, subject to unresolved issues concerning the parties to the subcontract, limitation and finality under the adjudication rules.