BuildLaw Issue 30 December 2017 | Page 9

Can a party initiate serial adjudications in an attempt to gain a tactical advantage?
We have only seen this happen once in 1000 cases. It was act of absolute petulance by a claimant’s representative in response to an extension of time being granted the respondent to serve its response. The joyous news is that the attempt backfired, and the respondent was given exactly the same extension of time by the second adjudicator (appointed by a different ANA), but the extension ran from the later date of its granting!
In the recent decision in Jacobs UK Limited v Skanska Construction UK Ltd [2017] EWHC 2395 (TCC) Mrs Justice O’Farrell DBE held that there is nothing to stop a party from withdrawing from an adjudication and starting a new one and that the principle of abuse of process does not apply to adjudication. The claim persists even after the withdrawal and new referral, as the dispute has not been decided by the previous adjudicator.
However, O’Farrell J rejected the submission that serial opening and closing of adjudications is always open to the parties, as this could force the other party to incur unrecoverable costs and thus, amount to unreasonable and oppressive behaviour, and in such circumstances, the court has a power to restrain the second adjudication by injunction.
The case involved an adjudication. Skansa initiated the adjudication but later withdrew and then subsequently referred substantially the same dispute to a different adjudicator.
Jacobs commenced proceedings seeking to restrain Skansa from taking any further steps in the second adjudication and a declaration that it was entitled to be paid its wasted costs in relation to the first adjudication.
O’Farrell J concluded that Skanska’s withdrawal was unreasonable, but not oppressive. Her Honour said Jacobs will be able to rely on most of its prepared work in the second adjudication, as the issue is substantially the same. Her Honour made the declaration in this case that Jacobs was entitled to its wasted or additional costs as damages, as Skanska had breached their contract detailing the timetable of adjudication.
Mrs Justice O’Farrell does suggest that where the conduct is genuinely oppressive (or the
inconvenience or costs caused ‘severe or exceptional’), the court might have the power to ‘intervene by way of injunctive relief. Whether a declaration as to costs could be granted where such behaviour occurs is unclear.
Adjudication
Time, tide, and now adjudication, wait for no man.
The Act provides:
• 5 working days as the mandated period within which an adjudication claim must be served following service of the adjudicator’s notice of acceptance;
• a default period of 5 working days for filing a response to an adjudication claim in order to meet the objectives and purpose of the Act. There must be a compelling case to justify extending that time period - going to the beach on holiday with the family is just not one of them;
• a mandated 5 working day period following service of the response during which the claimant may serve a reply; and
• subject to the adjudicator’s prior approval, a mandated period of 2 working days following service of the reply within which the respondent may serve a rejoinder.
There is no power for an adjudicator to extend the time for service of the claim, even if the parties agree otherwise. Accordingly, if a notice of acceptance was served by an adjudicator on any day in the week of 18 - 22 December 2017, the claimant must serve its adjudication claim on the relevant 5th working day during the week of 8 -12 January 2018.
Unless the parties agree to extend the time for service of the response, a respondent will be required to serve its response within 5 working days of service of the claim. Accordingly, if a claim was served on any day in the week of 18 - 22 December 2017, the claimant must serve its adjudication claim on the relevant 5th working day during the week of 8 -12 January 2018.