Index of Content

Issues in Dispute in Successive Adjudications

Emcor Drake & Scull Ltd v Costain Skanska Joint Venture (TCC, 29 October 2004)

Costain and sub-contractor Emcor had entered into DOM/2 (1981) for design and installation of electrical works to an hotel.

The works were delayed and Emcor made three claims to Costain for extensions of time. The second claim subsumed the first claim, and relied on additional events giving rise to delay. The third claim relied upon events and material comprised in the both the first and second claims.

Emcor referred the first claim to adjudication after Costain refused to grant the extension of time. However, the adjudicator decided that Emcor was not entitled to an extension since they had not showed sufficiently that they had not caused the delay themselves.

Emcor subsequently submitted the second claim for extension of time to adjudication, and this was considered by a different adjudicator. This decision was the subject of the TCC application.

Emcor attached the decision in the first adjudication to the referral notice of the second claim, and accepted that it would be bound by the decision of the first adjudicator, but stated that there were additional events that gave rise to delay that were to be considered.

The adjudicator appointed to consider the second adjudication looked at all the information presented to him, and decided that Emcor was entitled to an extension of time, and also to the sum of approximately £200,000. Costain refused to pay and Emcor applied to the TCC to enforce the decision.

Costain’s defence was that the second adjudicator’s decision was made without jurisdiction and/or in excess of jurisdiction and/or that the reference was an abuse of the adjudication process and therefore that his decision should not be enforced.

The TCC held that the second adjudicator’s decision should be enforced, and judgment was given for Emcor.

The judge made this decision on the grounds that the first adjudicator did not decide that Emcor was not entitled to any extension of time; but that they had not discharged the burden of showing that they were entitled to an extension of time.

The judge also said that it is common ground that an adjudicator has to respect the decision on a point decided in an earlier adjudication between the parties; however, here, the second adjudicator did consider that the first adjudicator had decided that Emcor had caused delay, though the second adjudicator concluded that such delay was not critical. The judge said that the second adjudicator was not invited to trespass on the first adjudicator’s decision, and he did not do so.

With regard to the allegation of an abuse of the process, the judge reminded the parties that the necessity to respond quickly to vast quantities of paperwork is a wellknown hazard in adjudication, and that cannot of itself be a ground for alleging that there has been an abuse of process. Therefore, the fact that the same documentation appeared in two successive adjudications was not an abuse of process.

Herbert Smith, Construction Update
January 2005

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