It is not unknown for acrimonious parties to refer a dozen disputes under a contract to adjudication. This is often referred to as serial adjudication. In such circumstances the parties must ensure that the dispute referred is distinct and does not overlap a previous adjudication. This chapter intends to explore that threshold and illuminate any nebulous areas.

The case law on this issue is plentiful, permeating from paragraph 9(2) of the Scheme: “An adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication.” These cases decipher the meaning of ‘substantially the same’, informing the adjudicator when to consider resigning and avoid falling victim to a trojan horse.

Case Law Development

In Quietfield v Vascroft [2006], Jackson J gave some helpful principles as follows: (i) the any defence rule is redundant with that defence already decided against; (ii) a contractor cannot make successive referrals for EOTs based on the same grounds; and (iii) whether dispute A is substantially the same as dispute B is a question of fact and degree.

In Birmingham City Council v Paddison Construction Ltd [2008] the issue changed to the evidence whereby Paddison re-adjudicated the same loss and expense claim with new evidence. The Judge said that the fact that the evidence became known at a later stage was irrelevant as the dispute was the same and to conclude otherwise would “permit Paddison to have a second bite at precisely the same cherry” and that was not the legislators’ intentions.

Next in line came Carillion Construction v Stephen Andrew Smith [2011] where Akenhead J added some uncontroversial views on the matter. Firstly, deploying new argument is not sufficient to change the dispute. Secondly, the basis of quantification of the claim is not a pointer to the referred disputes being different.

Next came a couple of final account cases sitting in the Court of Appeal. In Harding v Paice [2015] EWCA, Harding adjudicated its final account seeking relief on a ‘smash and grab’ basis or, alternatively, on a true value basis. The adjudicator decided that Harding was entitled to payment on the first basis. The Court found that because the adjudicator had only decided the ‘smash and grab’ issue, the true value issue remained open to a subsequent adjudication. Jackson LJ stated that: “It is quite clear from the authorities that one does not look at the dispute or dispute referred to the first adjudicator in isolation. One must look at what the first adjudicator actually decided.”

In Brown v Complete Building Solutions [2016], the Court of Appeal found that two ‘smash and grab’ final account adjudications were not substantially the same dispute. The first adjudicator found that the default payment notice was invalid. Therefore, CBS resubmitted the payment notice under the correct clause and re-adjudicated the same final account. HHJ Raynor QC had stated in the Court of first instance that it was “the new notice … which founded the Respondent’s entitlement to be paid.” The CA agreed that “what was decided in the First Adjudication was the ineffectiveness of the (first) notice … That was not raised at all as an issue in the Second Adjudication.”

In Hitachi Zosen Inova AG v John Sisk [2019] the second adjudicator determined there was no overlap of disputes as the first adjudicator was unable to value the variation due to the lack of substantiation provided. The Court stood by the tenet that one must look at what was actually decided in the first adjudication. The decision in Hart Builders v Swiss Cottage Properties [2022] followed in the same vein, it is not what is referred but what is decided.

In Lewisham Homes v Breyer Group [2021] the Judge distinguished between the different issues in the serial adjudications. The disputes involved the same subject matter, but one was related to entitlement and the other to quantum and so there was no question of overlap.

Sudlows v Global Switch Estates [2023] (EWCA) is a thought-provoking case study on the extent to which the adjudicator may take the initiative with an ‘alternative view’ to support the Courts in enforcement proceedings. It also furnishes the law in relation to ‘substantially the same dispute’. The referring party had claimed an EOT / Loss & Expense and the adjudicator decided that he was bound by a previous adjudicator’s decision on the delay for the proceeding period. Even though new material was adduced the adjudicator decided that the relevant event was not open to be decided as it was an “essential component” to the first adjudicator’s decision. Coulson LJ agreed with the adjudicator.

In Hyder Consulting v Carillion [2011], Edwards-Stuart J states that the adjudicator’s decision consists of two parts: the award; and an essential component of that award. By way of example, he says that “… in a decision awarding prolongation cost arising out of particular events, [the essential component is] the amount of the extension of time to which the referring party was entitled in respect of those events.” Similarly, in Sudlows, the relevant event was found to be an essential component to an award for an EOT.

Sudlows goes some way to illuminate the term of art ‘essential component’ and it might be said extending the purview of substantially the same dispute into unchartered territory. Unequivocally, it is proffered, this is still a moot area of law which will be tested again. For example, in a complex dispute there might be a myriad of essential components, and that might bring about the question of proximity. That is to say, a ‘question of fact and degree’.

Conclusion

Whilst establishing the law in deciding Sudlows, Coulson LJ set out a crude test of substantially the same: “if the second adjudication is allowed to continue, it would or might lead to a result which is fundamentally incompatible with the result in the first adjudication.” That high bar rather neatly summarises the position taken by the Courts in the cases referred to above.

He then went on to helpfully offer some practical advice for an adjudicator considering resignation: “the adjudicator … should be encouraged to give a robust and common-sense answer to the issue. It should not be a complex question of interpretation of documents and citation of authority.” That is in line with the policy to subjugate rigorous inquiry to the need for a quick and temporarily binding dispute resolution procedure and gives confidence that, save in the plainest of cases where the adjudicator has acted without jurisdiction and trespassed on another adjudication, the Courts will support the adjudicator.