Cases - Emcor Drake & Scull Ltd v Costain Construction Ltd & Skanska Central Europe AB

Record details

Name

Emcor Drake & Scull Ltd v Costain Construction Ltd & Skanska Central Europe AB

Date

[2004]

Citation

EWHC (TCC) 29/10/04

Keywords

Construction contracts - adjudication - adjudicator's jurisdiction - substantially same dispute -enforcement - second adjudication - abuse of process - ambush - whether substantially the same dispute had been referred to a second adjudicator - whether it was an abuse of process to submit a referral containing 5,000 pages

Summary

This case concerns the refurbishment of the Great Western Hotel at Paddington Station in London. Costain Skanska Joint Venture (CSJV) were the main contractors and Emcor Drake & Scull were sub-contractors. During the course of the works, Emcor made three claims for an extension of time - each one encompassing the previous one. The first claim was referred to adjudication in which Emcor failed to secure the extension of time claimed on the basis that they had failed to discharge the burden of proof. Importantly, the first adjudicator did not decide that Emcor were not entitled to the extension of time claimed, just that they had failed to prove that they were.

The second claim was referred to adjudication separately in which Emcor were successful. Emcor sought to enforce this decision, which was resisted by CSJV on two grounds:

1. CSJV argued that a significant part of the dispute referred to the second adjudicator had already been determined in the first adjudication and therefore the second adjudicator had no jurisdiction to reconsider these matters.
2. CSJV argued that Emcor had submitted approximately 5,000 pages of information in its referral, to which it was unfair and an abuse of the adjudication process to require CSJV to respond in the second adjudication.

With regard to point (1), the judge found as a matter of fact that the second adjudicator had not trespassed on the first adjudicator's decision. However, the fact that the second adjudicator had considered the facts and matters considered by the first adjudicator in reaching his decision was not objectionable. It is interesting to note that the parties, the second adjudicator and counsel all considered the second adjudicator to be bound by the decision of the first.

In relation to point (2), the judge decided that the necessity to respond quickly to vast quantities of paperwork is one of the well known hazards of the adjudication process. That cannot of itself be a ground for contending that there has been an abuse of process.