One Cherry - One Bite: Birmingham City Council v Paddison Construction Limited

October 2008

It's a fundamental principle of adjudication that a particular dispute may only be referred once.  If a dispute is the same or substantially the same then an adjudicator would not have jurisdiction to decide it.  Whether a dispute is 'substantially the same' however is a matter of degree and this can only be assessed given the particular facts of a case.

This was the matter which came before HHJ Frances Kirkham in Birmingham City Council v Paddison Construction Limited.

Paddison had run an adjudication against BCC seeking an extension of time and loss & expense for a construction project they had been working on.  Paddison succeeded in full in respect of their extension of time claim but In respect of the loss and expense claim the adjudicator found the claims to be "extravagant and exaggerated" and concluded "I am not prepared therefore, to any further monies relating to the Contractors loss and/or expense claim."  The adjudicator did purport to Paddison leave to pursue another adjudication for the loss and expense claim.

Paddison did commence a second adjudication seeking payment of loss and expense for the full extension of time.  The figure claimed had changed but the general principles of the claim had not.  Another adjudicator was appointed but BCC argued that he should resign on the basis that this was substantially the same dispute as the first adjudication.  Paddison contended that the first adjudicator had not made a decision on the loss and expense and therefore the adjudication could continue. The adjudicator refused to resign and BCC therefore sort a Part 8 declaration that he had no jurisdiction to continue and any decision would be a nullity.

HHJ Kirkham carefully examined the wording of the first decision, both Notices and Referrals and the subject matter of the claim itself and concluded that the adjudicator had issued a decision on the loss and expense claim and that claim was the same dispute as put before the second adjudicator.  She also noted that the adjudicator was not empowered to leave to adjudicate again and proferred that such a suggestion might have been made to sweeten the bitter pill of rejection of the claim. 

The court held that "to construct a dispute capable of reference to a fresh adjudication based on BCC's refusal to reassess a claim which is the same as that previously submitted, save with regard to calculation, on material previously suppiied would be artificial and contrived."

The judgement contains a useful summary of the authorities on this issue.

It is clear therefore that parties will not be given a second bite of the cherry when they attempt to refer a dispute which is substantially the same as previously referred.  This follows the logic that adjudication was only intended to be a temporary solution with the options of arbitration and litigation still open to a party if it is dissatisified with the decision.

The full transcript of the case can be found here.

This article contains information on current legal issues but is for information purposes only.  It should not be relied upon or be construed as advice or applied to any particular set of facts.  If you have a particular issue please take professional advice.