In case he was wrong about that, he then proceeded to make an alternative finding on the merits in which he decided in light of the new expert evidence that the ducting was fit for purpose and Sudlows was not entitled to refuse to energise the cables. The result was that Sudlows was only entitled to a further 133 days EOT, and were liable to Global in the sum of £209,053.
“An adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication.” The issue could arise at the outset if an adjudicator was asked to resign; or more commonly on enforcement or a part 8 claim and had been considered in a large number of cases, only a few of which the court found it necessary to refer to[11]. The court emphasised that context was important and that it was both disputes and decisions (i.e. what has been decided) that must be looked at and compared. Although both the 5th and 6th adjudication concerned the same relevant events, that was plainly insufficient to make the disputes the same.
The court now had to decide two issues.
First issue: The Prior decision Issue
Was Mr Molloy bound by Mr Curtis’s decision in the 5th Adjudication and to award Sudlows a further 133 days EOT with prolongation and other costs if the relevant events found by Mr Curtis continued to apply. In this case he could not take account of the new expert evidence or assess the matter differently. If he was not bound he could take account of the new evidence. It was common ground that if Mr Molloy was wrong to find he was bound, then that wrongfully narrow view of his jurisdiction would amount to a breach of the rules of natural justice and his primary decision could not be enforced.
That was because:
(a) they related to underlying EOT’s for different periods of time,
(b) the dispute in relation to the new EOT involved new relevant materials and the event of testing which were not, and could not, have been part of the dispute leading to the prior adjudication, and (c) this particular issue formed only one part of a much wider dispute between the parties as to the true value of the contract works as a whole, engendered by Sudlows Interim Application for Payment Number 46; the latter was in fact its final payment claim, on the basis that practical completion had by then taken place. In the judgment of the court, elements (a) and (b) alone would have sufficed. The court held the two disputes were not the same or substantially so and Mr Molloy was not bound by the findings of Mr Curtis in relation to the availability of an EOT for the earlier period.
Second Issue: The Alternative Finding Issue
If Mr Molloy was not bound by Mr Curtis’ findings, could Global rely on the detailed alternative findings to lead to an enforceable award in its favour?
First issue: The Prior decision Issue The law was shortly stated.
S 108(3) of the Act: once a dispute was decided, the decision was binding until the dispute was finally determined by legal proceedings, arbitration or agreement.
Paragraph 9(2) of the Scheme provided that:
[11] Simon LJ in Brown v Complete Building Solutions Ltd [2016] EWHC Civ 1; Dyson LJ in Quietfield Ltd v Vascroft Construction Ltd [2006] EWCA Civ 1737; [2007] BLR 67; Global Switch Estates 1 Limited v Sudlows [2020] EWHC 3314 (TCC).
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