Carillion Construction v Smith

The Facts

Carillion subcontracted underground pipeworks to Smith, then acting through a company by the name of Underground Pipeline Services (“the Company”).  The works were not completed on time and there was a dispute as to the causes of the delay, the extent to which there was any entitlement to an extension of time and the valuation of the works.  The Company referred the dispute to adjudication which largely amounted to an assessment of the final account and Carillion was ordered to (and did) pay the Company £110,000 odd.  However, the parties agreed that the adjudicator did not have jurisdiction to decide whether the subcontractor was entitled to an extension of time short of 5 May 2001 and, as a result, the Company prepared a second adjudication claim for an extension of time, loss and expense.  The adjudicator awarded the Company an extension of time up until 5 May 2001, but found that the Company had not proved that it had suffered loss and expense separate to that awarded in the first adjudication and therefore did not award any sums of money. 

The Company went into liquidation and some eight years later, Smith put together a detailed claim which formed the basis of the third adjudication, brought by Smith personally, trading as the Company. The referral notice for the third adjudication acknowledged that the same point could not be taken to adjudication twice, but stated that information contained within the current submissions had not been adjudicated upon before. Carillion issued Part 8 proceedings to resolve three issues, one of which was whether the third adjudication involved the referral of substantially the same dispute as that addressed in earlier adjudications.

Held

After referring to Quietfield Limited v Vascroft Construction Limited [2006] EWCA Civ 1737 and Benfield Construction Limited v Trudson (Hatton) Limited [2008] EWHC 2333 (TCC), the judge set out the factors to be taken into account in considering whether the same or substantially the same dispute had been referred to or resolved in an earlier adjudication:

1. One needs to consider what is and was the ambit and scope of the disputed claims which is being and was referred to adjudication…One has however to take a reasonably broad brush approach in determining what the referred claims were.
2. The fact that different or additional evidence, be it witness, expert or documentary, over and above what was relied upon in the earlier adjudication, is deployed in the later claim to be referred to a second or later adjudication, will not usually alter what the essential dispute is or has been…
3. The fact that different or additional arguments to support or enhance a claiming party's position are deployed in the later adjudication will not usually of itself mean that it is a different dispute to that which was referred earlier…
4. The fact that the quantum is different or is claimed on a different quantification basis in the later reference to adjudication from that claimed in the earlier adjudication is not necessarily a pointer to the referred disputes being in substance different…
5. One should be particularly cautious about being over-awed in the exercise of comparison of two sets of documents purporting to set out the disputed claims for two adjudications by the amount or bulk of the detail, evidence, analysis, submissions or annexures attached to either.
6. It is legitimate to look at the expressed motivation by the party in the later adjudication for bringing it and the given reasons for the basis of formulation of the later adjudication claim.
7. One must bear in mind that Notices of Adjudication and Referral Notices are not required to be in any specific form; they may be more or less detailed and they may or may not be drafted by people with legal expertise. They do not need to be interpreted as if they were contracts, pleadings or statutes.
8. One strong pointer as to whether disputes are substantially the same is whether essentially the same causes of action are relied upon in the earlier and later Notices of Adjudication and Referral Notices. One must bear in mind that one dispute (like one Claim in Court proceedings) may encompass more than one cause of action.

Although the analogy to issue estoppel or res judicata is an imperfect one when considering serial or repeat adjudications, it can provide some assistance in helping determine whether the same or substantially the same dispute referred to a later adjudication has already been subjected to an earlier adjudication

Applying the principles above, the judge formed a clear view that Smith had referred the same or substantially the same dispute in the third adjudication to that referred in the second adjudication.