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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Quietfield Ltd v Vascroft Contractors Ltd [2006] EWCA Civ 1737 (20 December 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1737.html Cite as: [2006] EWCA Civ 1737, [2007] BLR 67, [2007] BusLR D1, [2007] Bus LR D1, 114 Con LR 81 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TECHNOLOGY AND CONSTRUCTION
COURT
THE HONOURABLE MR JUSTICE JACKSON
HT-05-354
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DYSON
and
LADY JUSTICE SMITH DBE
____________________
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Appellant |
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- and - |
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Respondent |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
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Abdul Jinadu (instructed by Clarkslegal LLP) for the Respondent
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Justice May:
Introduction
Facts
"Appendix C is a bulky document. It spans almost 400 pages. It sets out numerous causes of delay. It also traces the dominant critical path. Appendix C analyses the delay to completion which was caused by each of the relevant events. Appendix C includes a number of bar charts, which (a) set outVascroft's
planned and actual programme and (b) trace the inter-relationship between the different activities on site and the
various
causes of delay."
"It is clear from the particulars of claim, the defence and the skeleton arguments in this action that there is effectively only one issue to be decided. That issue may be formulated as follows: Was the adjudicator correct in treating his own decision in the first adjudication as conclusive in relation to extension of time? If the answer to this question is "Yes", then the adjudicator's decision dated 7th December 2005 must be enforced. If the answer to this question is "No", then it follows that the adjudicator has expressly refused to consider both the written submissions and the evidence which constituteVascroft's
only substantive defence in the adjudication. In that event there has been a breach of the rules of natural justice and the adjudicator's decision cannot be enforced."
The law
"… that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration … or by agreement."
Paragraph 23(2) of the Scheme reproduces the substance of this subsection.
"An adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication."
Paragraph 9(4) of the Scheme provides:
"Where an adjudicator resigns in circumstances referred to in paragraph (2), or where a disputevaries
significantly from the dispute referred to him in the referral notice and for that reason he is not competent to decide it, the adjudicator shall be entitled to payment of … [reasonable fees and expenses]."
"(i) Where the contract permits the contractor to make successive applications for extension of time on different grounds, either party, if dissatisfied with the decisions made, can refer those matters to successive adjudications. In each case the difference between the contentions of the aggrieved party and the decision of the architect or contract administrator will constitute the "dispute" within the meaning of section 108 of the 1996 Act.
(ii) If the contractor makes successive applications for extension of time on the same grounds, the architect or contract administrator will, no doubt, reiterate his original decision. The aggrieved party cannot refer this matter to successive adjudications. He is debarred from doing so by paragraphs 9 and 23 of the Scheme and section 108(3) of the 1996 Act.
(iii) Subject to paragraph (iv) below, where the contractor is resisting a claim for liquidated and ascertained damages in respect of delay, pursued in adjudication proceedings, the contractor may rely by way of defence upon his entitlement to an extension of time.
(iv) However, the contractor cannot rely by way of defence in adjudication proceedings upon an alleged entitlement to extension of time which has been considered and rejected in a previous adjudication."
In my judgment, these principles are a correct analysis for the purposes of the present case. Mr Holt, for the appellant, attempted to persuade us, unsuccessfully in my view,
that the judge's paragraph (i) was wrong – see later in this judgment.
The judge's decision
"Appendix C is a far cry from the two application letters dated 2nd September 2004 and 22nd April 2005. It is perhaps regrettable that Appendix C was not advanced in the first adjudication. Appendix C identifies a number of causes of delay which do not feature in the two application letters. Further, Appendix C appears to be a structured and logical document, which sets out to demonstrate what the critical path was and how individual events did or did not impact upon the final date for completion. Whether, at the end of the day, the submissions in Appendix C will prevail, I do not know. This will be a matter for the adjudicator or, possibly, the arbitrator to decide. I am, however, quite satisfied thatVascroft's
alleged entitlement to an extension of time as set out in Appendix C is substantially different from the claims for extension of time which were advanced, considered and rejected in the first adjudication."
Grounds of Appeal
Discussion and decision
"… comprehensive extension of time document under cover of its letter dated 2nd September 2004. This document detailed the Relevant Events relied upon …VCL
requested an extension of time … revising the Due Date for Completion to 9th June 2005. A copy of this submission is contained within Appendix 2.6 of this Referral". (paragraph 4.1.6)
And then
"On 22nd April 2005,VCL
wrote to QL and requested a further Extension of Time until 23rd September 2005. A copy of this letter is contained at Appendix 2.9 of this Referral." (paragraph 4.1.14)
As with the Notice of Adjudication, the adjudicator was requested to decide that Vascroft
were entitled to an extension of time revising the Date for Completion to 23rd September 2005 or any other such date as the adjudicator should decide.
Lord Justice Dyson:
Lady Justice Smith: I agree with both judgments.