The facts
In 2003, Quietfield employed Vascroft to carry out renovations to a mansion in Buckinghamshire. The contract was a standard form JCT 1998 with amendments. Vascroft applied for two extensions of time and both applications were refused. This became the subject of an Adjudication raised by Vascroft in 2005. In this Adjudication, they were unsuccessful and were not awarded either extension of time.
Later that year, and before the same adjudicator, Quietfield raised Adjudication proceedings against Vascroft claiming payment of Liquidated Damages on the basis of Vascroft's failure to complete on time and relying on the decision of the Adjudicator that Vascroft had no extension of time entitlement.
Vascroft defended the Adjudication on the basis that they were entitled to extensions of time. A 400 page document was submitted in support of their position. This included details of the critical path and bar charts including programme details and information on the causes of delay. This had not been presented in the first Adjudication.
The Adjudicator refused to consider this document on the basis that Vascroft were attempting to rely on the same matters they had unsuccessfully argued in the first Adjudication, albeit they were now relying on different facts to support their position. The Adjudicator considered he was bound by his earlier decision and would not reconsider his position. Accordingly, he ordered payment of liquidated damages by Vascroft.
Vascroft refused to comply with this order and Quietfield applied to the court to enforce the adjudicator's decision.
The court's decision
The question for the court was whether the Adjudicator was correct in treating his own decision in the first Adjudication as conclusive on the question of the extension of time. If it was, the decision in the later Adjudication had to be enforced. If it was not, since the Adjudicator had refused to consider Vascroft's defence to the claim, the rules of natural justice had not been followed and the decision was not enforceable.
The court set out 4 principles:
- Where the contract allows successive applications for
extensions of time on different grounds,
either party can refer the decision on each of these to
successive Adjudications.
- If the contractor makes successive applications for
extensions of time on the same grounds, this
cannot be referred to successive Adjudications.
- Subject to 4 below, where the contractor is defending a
claim for LAD's in Adjudication, the contractor can
rely on an entitlement to an extension of time.
- The contractor cannot defend an Adjudication on an
alleged entitlement to extension of time which has already
been considered in Adjudication but rejected.
Applying these principles to the facts of this case, the court held that Vascroft's arguments for extensions of time in the later Adjudication were sufficiently different from their arguments in the first Adjudication. It identified a number of causes of delay which did not form part of the first Adjudication. The Adjudicator should therefore have considered the 400 page document. Accordingly, the court refused to enforce the adjudicator's decision.
Comments
The case demonstrates that Adjudicators must take care before refusing to consider material where there is a series of Adjudications. The 4 general principles will be useful guidance for anyone in doubt.
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