The Technology and Construction Court has thrown out an attempt to refer a dispute to a second adjudicator which it found to be materially the same as that already referred to adjudicator. The court commented that the contractor was trying to make up for the failures of its first attempt to adjudicate.

Birmingham City Council (BCC) entered into a contract with the defendant contractor for the construction of a training and community centre. The defendant alleged that BCC was responsible for delays to the project, and claimed for extensions of time and loss and expense of more than the £40,541.59 which BCC had already certified.

In February 2008, the contractor referred the dispute to adjudication. The adjudicator, Mr Bullock, decided that the contractor was entitled to an extension of time, liquidated and ascertained damages and sums in respect of variations. Mr Bullock granted no further sums for loss and expense, as he considered the contractor’s claims to be extravagant. However, he did give the contractor leave to pursue the claim in another adjudication, and recommended that, if the contractor took this route, a third party quantity surveyor be appointed to assist the adjudicator.

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The contractor claimed different sums in the two adjudications: the first claimed had been calculated using a formula calculation, and in the second the calculation was based on invoices. There was no difference in the supporting material, only its interpretation. The fact that the two sums claimed were different did not make Back's refusal to consider the second claim a dispute capable of being referred to a second adjudication. The addition of a claim for damages for breach of contract did not render the dispute in the second adjudication materially different from that in the first. This was a case where the contractor was attempting to make good in the second adjudication the shortcomings in their claim in the first adjudication.

(CD/JM)