3) Natural Justice - whether adjudicator bound by previous adjudicator’s findings – whether alternative findings binding and enforceable: Sudlows Ltd v Global Switch Estates 1 Ltd [2022] EWHC 3319 (TCC) Waksman J 22 December 2022 Sudlows brought a part 7 claim against its employer, Global, to enforce a decision of the adjudicator, Mr Molloy. He had ordered Global to pay Sudlows a total of £996,898.24 plus VAT in what was the 6th adjudication between these parties. Global resisted and brought part 8 proceedings for: (a) a declaration that Mr Molloy acted in breach of natural justice because he wrongly took too narrow a view of his jurisdiction by holding that he was bound by certain findings made by the adjudicator Mr Curtis, in the previous 5th adjudication; and (b) enforcement of Mr Molloy’s alternative findings awarding Sudlows £209,053.01 plus VAT, interest and fees (if he was found to have been wrong to hold that he was bound by Mr Curtis's decision). The proceedings concerned Section 2 of fit-out works of a data hall at East India Docks and specifically the installation from a private substation of high voltage electrical cables by Sudlows in ducting provided by Global. In the 5th adjudication, Sudlows succeeded on its claim that the cables were damaged on installation because the ducting was not fit for purpose and they were justified in refusing to energise the cable to complete the installation, and the ensuing delays were Relevant Events entitling it to an extension of
time for that part of Section 2, known as Window 29, which ran from 29 May 2020 to 18 January 2021. They also claimed and were awarded Extensions of Time (EOTs) for earlier delays in Windows 14, 18, 2, in total an EOT of 482 days. Following that decision, Global omitted the energisation from the contract and the cables were successfully tested and installed by another contractor. Sudlows then brought the 6th adjudication before Mr Molloy claiming further EOT from 19 January 2021 to the date of practical completion on 7 June 2021 together with loss and expense and other sums claimed due upon an interim payment application. Global in defence produced two experts’ reports which said the ducting had been fit for purpose, and denied the claimed entitlement to further time and money. They accepted that they could not reverse the previous EOT awarded by Mr Curtis, but said Mr Molloy was not bound by the findings of Mr Curtis; that Mr Molloy was entitled to consider in relation to this ‘new’ claim whether the further delay was caused by a relevant event (and relevant matters) as alleged, or not. Mr Molloy had to decide whether the dispute he was being asked to consider was the same or substantially the same as the one decided by Mr Curtis and thus whether he had jurisdiction to hear it. He suggested, and the parties subsequently agreed, to his approaching the dispute by deciding first whether he was bound by Mr Curtis’ findings. If not bound, he could proceed to decide the dispute. If he was bound he would say what decision he would have reached on the merits, had he been free to do so. In his decision, Mr Molloy took the view that he was bound by the findings of Mr Curtis meaning Sudlows was entitled to a further EOT and loss and or expense and other monies amounting to £996,898.
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