Two recent decisions have looked at whether a referral to adjudication was the same, or substantially the same, as an earlier referral. In both cases, the judge looked in detail at the nature of the dispute and the claims being made in the earlier adjudications. In Benfield, the first adjudication related to whether practical completion had taken place by a certain date. The second adjudication concluded that the defendant employer was entitled to liquidated damages for late completion because no extension of time was due to the claimant. The third adjudication primarily dealt with whether or not partial possession had taken place. This necessitated the adjudicator looking at when practical completion took place and whether the employer was entitled to liquidated damages. The Judge concluded that, as a matter of fact, the dispute in the third adjudication was the same, or substantially the same, as the first and second adjudications. In Paddison, the issue was whether the adjudicator had made an earlier decision on entitlement to loss and expense. The judge decided that the adjudicator had looked at this issue previously and the contractor was seeking to make good the shortcomings in its earlier claim.
Things to consider
In deciding whether a referral is the same as a previous one you must look at the material facts, the detailed issues and the underlying dispute for each adjudication. If the underlying dispute is the same, the court will refuse to permit subsequent adjudications. You cannot make up for deficiencies in the manner in which earlier adjudications were conducted, or escape from an earlier decision which you do not agree with, by issuing another adjudication.
Benfield Construction Limited v Trudson (Hatton) Limited  EWHC 2333 (TCC)
Birmingham City Council v Paddison Construction Limited  EWHC 2254 (TCC)