It took 8 years and £320,000 for Mr Smith to put together an adjudication claim. The adjudicator awarded Mr Smith about 80% of the £1million plus that he claimed, the adjudicator’s costs were over £60,000 and the adjudication costs likely to exceed £100,000. But, after all that, there was a potential glitch. Was the dispute the same, or “substantially the same”, as that decided in a previous adjudication in 2003?
In deciding the question, Mr Justice Akenhead identified several factors. One had to consider the scope of the disputed claims, taking a reasonably broad brush approach in determining what they were. Different or additional evidence or arguments would not usually alter the essential dispute and different quantum or quantification does not necessarily point to a substantial difference. Particular caution is required not to be “over-awed” by the bulk of a claim’s attachments, one can look at the stated motivation and reasons for the later claim and must bear in mind that notices of adjudication and referral notices do not have to be strictly interpreted. One strong pointer is whether essentially the same causes of action are relied on in both the earlier and later notices of adjudication and referral notices.
The judge decided that Mr Smith’s claim was the same or “substantially the same” as the 2003 adjudication claim. It was an attempt to fix the gaps that caused the previous claim to fail. After all that, the later adjudication award was unenforceable.
Carillion Construction Ltd. v Stephen Andrew Smith [2011] EWHC 2910
