The defendant submitted that the court should be very cautious before undertaking a detailed dissection of the reasons given by the adjudicator and, instead, should focus on what was referred to him and what he decided. The question as to what extension of time the defendant was entitled to was clearly referred to him, and since he clearly had jurisdiction to decide it, and since his decision was clearly that a fair and reasonable extension of time should be granted to [22 October 2018], that was the end of the matter. The court ought not to be too willing to cut down the scope of what was decided from a consideration of the words used in the decision itself by undertaking too detailed and too fine an analysis of the reasons given by the adjudicator for his decision. That would be both wrong in principle and also unfair on the adjudicator, given the pressure of time under which he, like all adjudicators, operated. It could not be assumed that the reasons actually given were exhaustive as to the actual reasons for the decision. In the circumstances the court declined to make the declarations sought by the claimant in this respect. The claimant also sought a declaration that the adjudicator's finding that "ISG has not demonstrated and proved that EAG was responsible for causing 20 weeks delay" was to be understood in the context of the defendant's application for payment number 35 and did not prevent the claimant from now seeking to recover loss and expense in adjudication and/or limit any such claim. The defendant submitted that such claim was premature and served no useful purpose as the claimant had not identified what loss and expense it wished to claim nor any dispute in relation to any such claim that could be referred to adjudication.
The declarations sought were usually sought in the context of the enforcement of a decision. That did not apply here. It was particularly important not to anticipate future events where, as here, it appeared there might be a number of future adjudications. The declaration sought was in extremely wide terms. Whilst the adjudicator's decision was limited so that it related only to the issue as to whether or not the claimant was entitled to rely upon its bona fide estimate, the court was by no means clear what the impact of this was. The court concluded by observing in passing that whilst it was the policy of the TCC to support adjudication, it would not be proper to proceed on the basis that it was always in the best interests of the parties to engage in a diet of serial adjudications, supplemented as required by a series of applications to the TCC seeking enforcement or Part 8 declaratory relief. In appropriate cases the parties' interests might be better served by persuading the TCC to exercise its case and cost management powers to enable their disputes to be finally determined in an expeditious and cost-effective manner.
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