Sudlows Limited v Global Switch Estates 1 Limited

An adjudicator cannot determine a dispute which is the same or substantially the same as one decided in an earlier adjudication. The inquiry is one of fact and degree. It requires a robust, common-sense assessment of what the first adjudicator actually decided, including findings essential to the award.

Differences in the relief claimed, the period covered or the evidence adduced do not necessarily create a new dispute. A party cannot reopen a decided issue merely by presenting further evidence. A fundamentally incompatible result may indicate impermissible re-adjudication. An essentially new claim or defence remains permissible, particularly where the earlier adjudicator did not decide its merits.

Global Switch Estates 1 Limited engaged Sudlows Limited under a design and build contract for data-centre works. Disputes arose over responsibility for defective ductwork, damaged electrical cables and the resulting delay.

In Adjudication 5, the adjudicator decided that Global was contractually responsible and awarded Sudlows a 482-day extension of time. In Adjudication 6, concerning a further 133 days and associated loss and expense, the later adjudicator considered himself bound by that finding and awarded Sudlows £996,898.24. His alternative conclusion, based on further evidence, would have produced an award of £209,053.01 for Global.

Waksman J held in [2022] EWHC 3319 (TCC) that the later adjudicator was not bound and enforced the alternative conclusion. The central issue on appeal was whether the two adjudications involved the same or substantially the same dispute.

1. Appeal allowed. The later adjudicator was bound by the first adjudicator’s decision. His principal award of £996,898.24 in favour of Sudlows was reinstated.

2. The statutory scheme prevents a second adjudicator from deciding a dispute which is the same or substantially the same as one already decided. The comparison is one of fact and degree and calls for a robust, flexible and common-sense answer. The court must focus on what the first adjudicator actually decided. Formal differences between notices, referrals, remedies or periods must not obscure the substance of the dispute.

3. A binding adjudication decision comprises more than the monetary award or declaration. It includes a finding about the parties’ rights which forms an essential component or basis of the award. Here, responsibility for the cabling and ductwork issues was the only substantial issue in Adjudication 5. The finding that Global bore that responsibility was therefore binding in Adjudication 6.

4. Although the second extension-of-time claim covered a later period, the underlying issue had not changed. There were no competing Relevant Events, no different critical-path case and no new work or factual narrative. The later delay was the logical continuation of the delay already attributed to Global. A conclusion that Sudlows was responsible would have been fundamentally incompatible with the first decision.

5. The later reports and testing evidence could not reopen the decided liability issue. Evidence must be distinguished from the dispute which it is deployed to prove. The material was a development of Global’s earlier evidential case, rather than a new issue or line of inquiry. Any challenge to the first adjudicator’s decision had to be made in court or arbitration.

6. A court is not bound by an adjudicator’s ruling on overlap, but should be slow to interfere unless the ruling is clearly wrong. That restraint protects the speed and temporary finality of adjudication. Lady Justice Andrews and Lady Justice Elisabeth Laing agreed with Coulson LJ.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 813, allowed Sudlows’ appeal, set aside the contrary conclusion below and reinstated the later adjudicator’s principal award of £996,898.24.

2. High Court, Technology and Construction Court: In [2022] EWHC 3319 (TCC), Waksman J held that the later adjudicator was not bound by the earlier adjudication, declined to enforce his principal decision and enforced his alternative conclusion in Global’s favour.