The court rejected a submission that it was open to a party to start and stop serial adjudications in respect of the same claim. Doing so and requiring a party to incur irrecoverable costs could amount to unreasonable and oppressive behaviour, though it was a question of fact and degree in each case. The Act and the applicable Scheme did not impose any restrictions on the referring party’s entitlement to withdraw unilaterally a claim referred to adjudication or to commence a further adjudication in respect of the same, or substantially the same, dispute. It was envisaged that where an adjudicator resigned, the same dispute might be the subject of a further reference. The adjudicator in Adjudication No.1 did not reach a decision. Therefore the adjudicator in Adjudication No.2 would have had jurisdiction to determine the dispute referred. The court’s power to grant an injunction to restrain the second adjudication might be exercised, for example, where the adjudicator did not have jurisdiction because the dispute had been decided in an earlier adjudication, or where the referring party had failed to comply with the adjudication agreement (such as failures to pay awards or costs), or where the further adjudication was vexatious (such as serial adjudications in respect of the same claim). Skanska’s withdrawal of the claim in Adjudication No.1 was unreasonable, the unavailability of counsel rarely being an excuse for failing to meet an agreed timetable, especially where the party in default was the referring party who had control of the timing and scope of the reference. However, unreasonable behaviour by one party would not automatically deprive it of the right to adjudicate the dispute in a subsequent reference. In this case, the substance of the claims remained the same and therefore, Jacobs would be able to rely in large part on its previous response. The need for new material, including new quantum expert evidence, had been anticipated by Skanska following Jacobs’ response, hence Jacobs’ action in seeking the right to submit a rejoinder. The inconvenience and additional costs suffered by Jacobs were not so severe or exceptional so as to warrant the grant of an injunction. Therefore Skanska’s conduct was not oppressive. Nevertheless Jacobs was entitled to any wasted or additional costs caused by Skanska’s failure to comply with the original agreement. It was common ground that, where there was absent agreement giving the adjudicator jurisdiction to award costs, a party’s costs of adjudication proceedings were not recoverable. However, in this case, the parties had entered into an ad hoc agreement under which the procedure and timetable to resolve the referreddispute in the first adjudication had been agreed and fixed. That agreement imposed new enforceable obligations on the parties. Alternatively, there was an implied term in the ad hoc agreement that if one party changed its mind and decided to ignore the agreement, it would pay the wasted costs of the other party.
The failure to serve its reply or continue with the first adjudication constituted a breach of the ad hoc agreement, entitling Jacobs to any wasted or additional costs as damages. Conclusion i) A party to adjudication was entitled to withdraw unilaterally a dispute referred to adjudication and commence a further adjudication in respect of the same, or substantially the same, dispute. ii) In such circumstances, the court had power to grant an injunction to restrain pursuit of the further adjudication if the further adjudication was unreasonable and oppressive. iii) On the facts, the second adjudication did not amount to unreasonable and oppressive behaviour. iv) Jacobs was entitled to its wasted and/or additional costs, if any, caused by Skanska’s failure to comply with the agreed timetable. 13. Summary Adjudicator’s agreement—binding by conduct See (1) Christopher Linnett Ltd and (2) Christopher Linnett v Matthew J Harding t/a M J Harding Contractors An adjudicator’s agreement was entered into by conduct with the responding party by reason of his participation albeit without prejudice to jurisdictional objections. The role of adjudicator could only be performed by an individual and Mr Linnett had indeed entered into the agreement in his personal capacity. The agreement was made in the course of business so the Late Payment of Commercial Debts (Interest) Act 1998 applied and interest, statutory compensation and debt recovery costs were awarded. Adjudicator’s fees—whether fees must be reasonable and how is reasonableness resolved See The Vinden Partnership Ltd v Orca LGS Solutions Ltd and another The adjudicator’s fees must be reasonable unless the contract expressly excludes such requirement by very clear words. Where the fees claimed are supported by time records, the evidential burden of showing the fees are unreasonable lies on the party challenging them. The court will take a robust approach when considering what is reasonable and will if necessary determine the question itself on the material before it.
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