Carillion Construction Ltd V Smith
Technology and Construction Court
10 November 2011
It was necessary to consider what was the ambit and scope of the disputed claims referred in successive adjudications. Whilst the ambit and scope of the disputed claims would vary from dispute to dispute, it was necessary to take a reasonably broad brush approach in determining what the referred claims were so as to avoid repeat references to adjudication of what was essentially the same dispute. Different or additional witness, expert or documentary evidence over and above what was relied on in the earlier adjudication deployed in the later claim to be referred to a second or later adjudication would not usually alter what the essential dispute was or had been because such evidence alone did not generally alter the essential dispute between the parties and it was necessary to differentiate between the essential dispute and the evidence required to support or undermine a party's case or defence.
The deployment in the later adjudication of different or additional arguments to support or enhance a claiming party's position would not usually of itself mean that it was a different dispute to that which was referred earlier because such different or even better arguments did not usually create an essentially different dispute. The fact that the quantum was different or was claimed on a different quantification basis in the later reference to adjudication from that claimed in the earlier adjudication was not necessarily a pointer to the referred disputes being in substance different. It was necessary to be particularly cautious about being over-awed in the exercise of comparing two sets of documents purporting to set out the disputed claims in two adjudications by the amount or bulk of the detail, evidence, analysis, submissions or annexures attached to either.
It was legitimate to look at the expressed motivation by the party in the later adjudication for bringing its claim and the reasons it gave for the basis of formulation of the later adjudication claim. It was necessary to bear in mind that notices of adjudication and referral notices were not required to be in any specific form, might be more or less detailed, might or might not be drafted by people with legal expertise and did not need to be interpreted as if they were contracts, pleadings or statutes. One strong pointer to whether disputes were substantially the same was whether essentially the same causes of action are relied on in the earlier and later notices of adjudication and referral notices on the basis that one dispute (like one claim in court proceedings) might encompass more than one cause of action.