the adjudicator’s fee and the costs of the action and the application. 12. Withdrawal of referral—right to refer same dispute to adjudication— power of court to grant injunction to restrain second adjudication—whether second adjudication unreasonable or oppressive—award of wasted costs See Jacobs UK Ltd v Skanska Construction UK Ltd 28 Jacobs claimed an injunction to restrain Skanska from proceeding with an adjudication, following Skanska’s withdrawal from an earlier adjudication in respect of the same or substantially the same dispute. The material question was whether a party to adjudication was entitled to withdraw a dispute from adjudication and then refer the same, or substantially the same, dispute to a second adjudication. Skanska had engaged Jacobs in around February 2011 to provide design services in respect of a PFI project for the design and replacement of street lighting in Lewisham and Croydon. There was a dispute about the adequacy of the services. The contract was a construction contract for the purposes of section 108 of the Act and contained an adjudication provision. On 8 February 2017 Skanska gave notice of an intention to refer the dispute to adjudication (Adjudication No.1). Concerns were raised as to whether the adjudication agreement complied with the Act and in face of jurisdictional challenges, the parties reached agreement to appoint Mr Patrick Waterhouse as adjudicator, that the Scheme would apply and as to a timetable and recorded it in writing. Mr Waterhouse was duly appointed. Referral and response documents were served in accordance with the agreed timetable. However, Skanska’s counsel became unavailable and it was unable to serve its reply by the due date (as agreed). Skanska requested an extension of time but Jacobs refused the request and the adjudicator declined to grant an extension of time unless both parties agreed. Skanska thereupon withdrew its reference to adjudication and invited the adjudicator to resign and eventually he did so. Ten days later on 21 June 2017 Skanska gave a fresh notice of intention to refer the dispute to adjudication. This second notice (Adjudication No.2) contained substantially the same claims as the first save that one of the claims was withdrawn, the scope of the dispute narrowed, and methodology and quantum of damages was revised.
On 4 July 2017 Jacobs commenced Part 8 proceedings seeking a declaration that Skanska was acting unlawfully in proceeding with Adjudication No.2; for an order restraining Skanska from taking any steps in furtherance of Adjudication No.2; and requiring Skanska to withdraw it. They also sought a declaration that Jacobs was entitled to its wasted costs of Adjudication No.1. Jacobs’ case was that Adjudication No.1 should have been conducted in accordance with the agreed timetable. It had a right to a resolution process fair to both parties and which did not confer an uncovenanted advantage on the referring party. It invited the court to protect its right to a procedurally fair process which was not unreasonable and oppressive. Skanska said there was no concept of abuse of process in adjudication and a referring party was free to obtain whatever tactical advantage it could. It also had the right to start adjudication in relation to a dispute “at any time” and with the unrestricted right to start, abandon and pursue ‘serial’ adjudications in respect of the same dispute. The court referred to sections 108(1), 108(2), 108(3) of the Act and the relevant provisions of the Scheme found at paragraphs 1(1), 7(1), 9(1), 9(3) 11(1), 13, 14 and 15. The court reiterated that the Act and the Scheme envisaged a rough and ready process. The referring party had the clear advantage of selecting the timing and scope of the dispute. The timetable was very tight. The inherent unfairness in the process was justified by the advantage of speed and efficiency, balanced by the temporary effect of any decision. Turning to the legal principles, there was no express or implied restriction in the Act or the Scheme precluding a party from withdrawing a disputed claim which had been referred to adjudication: Midland Expressway Ltd v Carillion Construction Ltd 29 per Jackson J., even after the referral notice had been served, regardless of the motive for the withdrawal, and nothing to preclude that party from pursuing the claim in a later adjudication: Lanes Group plc v Galliford Try Infrastructure Ltd 30 per Jackson LJ . The principle of abuse of process did not apply to adjudication: Connex South Eastern Ltd v MJ Building Services Group plc 31 per Dyson LJ. However, it did not follow that the courts would never intervene to prevent a party from pursuing a claim in adjudication. The court had power under section 37 of the Senior Courts Act 1981 to prevent an adjudication where (a) one party could show that the other party had invaded, or threatened to invade, a legal or equitable right of the former, amenable to the jurisdiction of the court, or (b) where one party to any action had behaved, or threatened to behave, in a manner which was unconscionable. The court thus had power to grant an injunction restraining a party from commencing or continuing an adjudication that was unreasonable and oppressive.
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