Birmingham City Council v Paddison Construction Ltd  EWHC 2254 (TCC)
If an adjudicator finds himself in the position that he cannot properly, reasonably and fairly make a decision on some element of the claim, he must make it clear to the parties that that is the case. Otherwise, the referring party cannot make that element the subject of a second adjudication. To read the judgment, click here.
Birmingham City Council v Paddison: In February 2008, Paddison referred to adjudication the parties' dispute regarding responsibility for delay and the financial consequences of such delay. After several requests for an extension of time, all of which were granted, the adjudicator in this first adjudication gave his decision on 16 April 2008. He decided that: (i) Paddison were entitled to an extension of time for the full period, that is, of 119 days up to 23 June 2006; (ii) BCC should pay LADs withheld of £26,800; and (iii) BCC should pay Paddison £25,363.69 for variations. So far as the loss and/or expense claim is concerned, at section 6 of his decision, the adjudicator stated that he felt the claim was ‘extravagant and exaggerated’, but purported to ‘grant the Contractor leave to pursue this claim via a further Adjudication if they so wish.’ Paddison started a second adjudication to pursue this claim, saying no decision had been made concerning loss and/or expense, but Birmingham objected, arguing that the dispute was the same, or substantially the same, as that decided in the first adjudication. The court agreed, noting that this was not a case where the adjudicator concluded that he could not make a decision. Mr Bullock had given express consideration to Paddison’s claim and had decided to refuse to award them any money. Paddison’s loss and/or expense claim was decided – Mr Bullock decided that the information provided to him was insufficient to support a decision that Paddison was entitled to further payment. If Mr Bullock had found himself in the position in which he could not reach a fair and impartial decision on a complex issue in the time allowed, one would expect him to warn the parties. He gave no warning that he would not be able to reach a decision on Paddison’s loss and/or expense claim.