Benfield Construction Ltd v Trudson (Hatton) Ltd
The adjudicator in the third adjudication did not have the jurisdiction to embark upon and to decide the issues in the that adjudication
17 September, 2008
BENFIELD CONSTRUCTION LTD V TRUDSON (HATTON) LTD
Technology and Construction Court
17 September 2008
17 September 2008
The works were delayed. Representatives of the employer's agent and the contractor signed a "handover form". This form confirmed that the works were accepted as complete. The employer began a first adjudication in which the dispute referred was said to arise out of its contention that practical completion had not occurred when the handover form was signed. The adjudicator concluded that practical completion had not occurred at the time the handover form was signed. The employer brought a second adjudication in which the adjudicator awarded the employer liquidated damages. The contractor brought a third adjudication in which it argued that partial possession of the project had taken place at the time the handover form was signed with the result that the employer was not entitled to liquidated damages. The employer objected and participated without prejudice to its primary contention that the adjudicator had no jurisdiction on the ground that the dispute in the third adjudication was substantially the same as the disputes in the first two adjudications. The adjudicator rejected the employer's jurisdictional objection and its case on liquidated damages, concluded that practical completion took place when the handover form was signed and decided that the liquidated damages should be repaid by the contractor. The contractor brought court proceedings to enforce this decision.
Coulson J agreed with the employer's jurisdictional objection. There were real grounds for concluding that the adjudicator in the third adjudication erred on the basis that there was a substantial overlap between that which he adjudicator was asked to decide in the third adjudication and that which the adjudicator in the first two adjudications had already decided. Also it was decided in the first adjudication that practical completion had not taken place at the time the handover form was signed but it was decided in the third adjudication that practical completion should be deemed to have taken place at that very time. As to whether the employer was entitled to liquidated damages, it was decided in the second adjudication that the employer was entitled to liquidated damages but it was decided in the third adjudication that the employer was not entitled to any liquidated damages. It was difficult to imagine a more obvious case of overlap and indeed a starker case of fundamentally contrary decisions.