It was still necessary to turn to Mr Molloy’s decision in relation to his jurisdiction where he found he was bound by Mr Curtis’ decision in material respects. The court was bound to afford the decision due respect. Notwithstanding Mr Molloy’s careful analysis and reasoning consideration he was clearly wrong for the following reasons. First, the cases made clear that the jurisdictional question involved an analysis of what both disputes were about, and whether they were the same or substantially so. Mr Molloy did not apply that test at all. Second, he failed to give any real weight to the fact that the decision in the 5th Adjudication was as to an EOT for a prior period. Third, he made no reference to the new material adduced before him and which, he considered to be so significant to his alternative finding. This was more than argument; it was new evidence. In consequence he did have jurisdiction, there was a breach of natural justice and his principal decision could not be enforced. Sudlows contended that if the principal decision fell, enforcement of the alternative decision would require severance, and in this case, it could not be severed as the alternative findings were not part of the decision. The court said that severance was not a relevant consideration here. The alternative findings were just as detailed as the primary findings. There was no point in making them, or the parties agreeing to them being made, if they were not to be regarded as binding if the primary findings fell away. Mr Molloy had jurisdiction to make the findings. The parties had agreed to his making alternative findings. They constituted a separate decision, even if not referred to in the ‘Decision’ part of his written decision. They were not to be regarded as ‘obiter’ – the convention of precedence did not apply to adjudication since decisions were
intended to have temporary binding effect.
The alternative findings were to be enforced.
Comment
Two points emerge. The question whether two disputes are the same or substantially so may require deep analysis and is not always obvious. Here, two disputes featured questions of EOTs over different periods supported by different evidence, yet relied on the same relevant events. It was the causes of the delay(s) which were at issue. Findings that a particular cause operated in an earlier period did not mean it could not be disputed as being the cause of delay in a later period (even though this involved the benefit of hindsight). Notably here there was fresh evidence and the cause of the earlier delay was not challenged, but was accepted by the previously unsuccessful party. The second point of note is that if the parties agree, the adjudicator can make alternative findings and they are likely to be given effect where the primary decision falls away.
Made with FlippingBook - professional solution for displaying marketing and sales documents online