| Date | 10 November 2004 |
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| Judgment | Emcor Drake & Scull Ltd v Costain/Skanska Joint Venture, TCC 29 October 2004 |
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| The Issue | Identifying the issues in dispute in successive adjudications. |
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| Implication |
Adjudicators have to observe decisions made in earlier adjudications upon the same matters in dispute, but the fact that the same documentation appears in two successive adjudications is not of itself an indication of conflict. |
printIn early 2000 Costain and Skanska entered into a joint venture as the main contractor for the refurbishment and alteration of the Great Western Royal Hotel at Paddington. Emcor Drake & Scull was engaged as one of the principle subcontractors and was responsible for the design and installation of electrical services under a DOM/2 subcontract. Works were delayed and although extensions of time were granted to Emcor, completion of the subcontract works did not occur until some seven months after the extended date for completion. Emcor submitted three claims for extensions of time, the first some nine months after the completion of their subcontract works. This first claim concerned only delays to the bedrooms of the hotel and included particulars requesting an extension of time of four months. Costain/Skanska refused to accept Emcor's entitlement and in due course Emcor referred this claim to adjudication. The adjudicator refused to grant the declaration which Emcor sought, concluding that on balance Emcor had not discharged its burden of proof in order to show that it had not delayed the completion date itself. Exchanges between the parties continued. Whilst Emcor recognised that it had been unsuccessful in the first adjudication, it continued to argue its entitlement for a full extension of time and submitted a second and third extension of time claim. The third claim was not submitted almost two years after completion of the subcontract works. That too was ignored by Costain/Skanska and shortly thereafter was referred to adjudication. Emcor attached the first adjudicator's decision to its referral in the second adjudication and noted that the first adjudicator had decided that Emcor had failed to establish that delays to the guest bedrooms caused a delay to completion. The referral acknowledged that Emcor would be bound by the earlier adjudicator's decision and therefore indicated that in the second adjudication, it did not seek to rely upon the slippage to the guest bedrooms as having caused delay to completion. Other delays were to be taken into account. Despite this, the second adjudicator would have to have regard to detailed information in relation to the guest bedrooms, as that was clearly part of the history of the project which the adjudicator needed to consider. The second adjudicator examined all of the material before him and concluded that Emcor was entitled to an extension of time of the subcontract works up to the date of completion and to payment of a sum of approximately £200,000 as loss and expense. Costain/Skanska refused to pay and the matter proceeded to enforcement in front of His Honour Judge Richard Havery QC in the Technology and Construction Court. Costain/Skanska set out a number of reasons why, in its opinion, the second adjudicator's decision should not be enforced. Firstly it was argued that under the terms of the subcontract, Costain/Skanska was empowered to grant only one extension of time. It therefore followed that there could be only one adjudication on that point. Judge Havery clearly felt that that argument made no sense and immediately rejected it. Secondly Costain/Skanska argued that in making his decision, the second adjudicator had considered and reached conclusions upon facts and matters that were contrary to those that had been reached in the first adjudication. Since the second adjudicator should be bound by the decisions of the first adjudicator, the second adjudicator had exceeded his jurisdiction and his decision was unenforceable. Again, Judge Havery rejected that argument. He was satisfied that the first adjudicator had decided merely that Emcor had not discharged the burden of proof that they were entitled to an extension of time on the ground of critical delay to the bedrooms. The second adjudicator had clearly recognised that he was bound by the decision of the first adjudicator and had made it clear in his decision that his findings had not involved consideration of works to the bedrooms, except to the extent that he had satisfied himself that that work had no effect on the activities which he had considered. Judge Havery was satisfied that the second adjudicator was perfectly entitled to approach the matter in this way. Whilst the second adjudicator necessarily had to reconsider the facts and matters that had previously been adjudicated upon, that in itself was not objectionable. Plainly he could take into account all of that material without trespassing upon the first adjudicator's decision. Finally, Costain/Skanska argued that of the approximately 5,000 pages submitted in support of the referral notice in the second adjudication, some 4,000 pages had already been considered by the first adjudicator. Costain/Skanska argued that it was unfair and an abuse of the adjudication process to require it to respond to those facts and matters a second time. Again, Judge Havery was unimpressed by this argument and noted that the necessity to respond quickly to vast quantities of paperwork is one of the well-known hazards of the adjudication process. In his judgment, the fact that the same documentation appeared in two successive adjudications was a wholly insufficient ground for concluding that there had been an abuse of the adjudication process. Accordingly, the decision of the second adjudicator was enforceable.
CJ-0445
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