Civil Engineering Reference
In-Depth Information
behalf of Nuttall, which made a claim for an identical extension of time, however,
the justification for the extension was different to that put forward in the May claim.
The judge was required to decide whether the dispute which had been adjudicated
upon and in respect of which a decision was given, was the dispute which was the
subject of the Notice of Adjudication.
hejudgerejectedthesubmissionthatthedisputeshouldbeidentiiedbyreference,
at least principally, to what was being claimed. Nuttall suggested that it was enough
that the extension of time sought was always the same and it was irrelevant that the
facts and arguments relied upon in the expert report were significantly different from
the facts and arguments relied upon in the previous claim. The judge considered that
for there to be a dispute, there must have been an opportunity for the protagonists
each to consider the position adopted by the other and to formulate arguments of a
reasoned kind. He felt that some form of rejection of a party's claim was required. he
judge said that 'a party can refine its arguments and abandon points not thought to be
meritorious'butitcannot'abandonwholesalefactspreviouslyadvanced'.Suchwhole-
sale abandonment would prevent a party from asserting that the 'claim' or 'dispute'
remained the same.
In
Fastrack Contractors Ltd
v.
Morrison Construction Ltd and Another
(2000) Mor-
rison were the main contractors for the construction of a new leisure arena. Fastrack
were the brickwork sub-contractors. The case concerned second adjudication pro-
ceedings (the first concerned interim application 12). The Notice of Adjudication
provided:
[T]hedisputestobereferredaretheissuesastothe[Claimant's]rightstopay-
ment
under the following headings/descriptions: measured work; scaffold vari-
ations; other variations; dayworks; storm damage; prolongation costs, and loss and
expense arising from delay and disruption caused to the sub-contact works by the
[Defendants'] breaches of contract; a fair and reasonable extension of time for com-
pletion of the sub-contract works; loss of profit as a result of repudiation; additional
overheads; such other sums as the Adjudicator deems appropriate.
…
The Notice of Adjudication sought payment of approximately £483,000. The Referral
Notice claimed approximately £479,000.
Morrison argued that the only dispute in existence at the time the Notice of Adju-
dication was served was in relation to application 13 and there were significant differ-
ences between the sums claimed in that application for measured works, variations,
scaffolding, preliminaries, disruption and damages.
The adjudicator decided the issues were materially the same as application 13 so
there was a pre-existing dispute, and he awarded payment of approximately £120,000.
Morrisondefendedenforcementproceedings.HisHonourJudgehorntondecided
'the dispute' was whatever claims, heads of claim, issues, contentions or causes of
action were in dispute at the moment that the Referring Party first intimated an adju-
dication reference. All the issues in the Notice of Adjudication had been referred by
Fastrack to Morrison, had been rejected by Morrison and had therefore ripened into
disputes by the time the Notice of Adjudication was served.
