Birmingham City Council v Paddison Construction Ltd [2008] EWHC 2254 (TCC)

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An adjudicator is entitled to make no decision on an issue which is too complex to decide fairly and impartially – but if the adjudicator does make a decision, there’s no second bite of the same cherry.

Her Honour Judge Frances Kirkham – Queen’s Bench Division, Technology and Construction Court


Birmingham City Council (“BCC”) engaged Paddison Construction Limited (“Paddison”) to undertake construction work for a new community and training centre.  Practical completion was delayed, and a dispute arose as to which of the parties was responsible for the delay and its financial consequences.

Paddison referred the dispute to adjudication, claiming an extension of time up to the date of practical completion and reimbursement of its loss and/or expense for the whole of that period.  The adjudicator granted the extension of time.  However, while acknowledging that some monies over and above the sum already certified for that period “may” be due, the adjudicator found Paddison’s claim “extravagant and exaggerated” and was therefore “not prepared” to make any further award. 

However, the adjudicator purported to grant Paddison leave to pursue the claim via a further adjudication.  Paddison duly commenced a second adjudication in respect of their claim for loss and/or expense. 

BCC challenged the jurisdiction of the second adjudicator on the basis that the dispute was the same, or substantially the same, as that which had already been decided.  Paddison argued:

  • that no decision in relation to their loss and/or expense claim had been reached in the first adjudication
  • alternatively, that the dispute referred to the first adjudicator was not the same or substantially the same as the dispute referred to the second.


The Court held that the first adjudicator’s assertions that Paddison’s loss and/or expense claim was “extravagant and exaggerated” and that he was “not prepared to grant further monies” for loss and/or expense amounted to a decision.  This was not a case where the adjudicator had concluded that he could not make a decision – it was clear to the Court that the adjudicator had given express consideration to Paddison’s claim and had decided - on the basis of the information provided to him - to refuse to award them any money.

The fact that the adjudicator had sought to grant Paddison the right to pursue its claim by way of a further adjudication was “unfortunate” – such power was clearly outside of his authority.

Having established that the dispute in the first adjudication had been decided, the Court held that this dispute was the same, or substantially the same, as the dispute which Paddison had referred in the second.  Paddison claimed there were real differences between the two disputes because it had relied on different reports, framed its claim differently and brought a new claim for damages.  The Court rejected these distinctions as artificial in the circumstances.

HHJ Kirkham concluded that this was a case where Paddison had sought to make good in the second adjudication the shortcomings in their claim in the first adjudication.  As the dispute was the same or substantially the same in both, the second adjudicator had no jurisdiction to act as adjudicator and must therefore resign and/or any decision reached would be a nullity and unenforceable.

This summary was provided by CMS Cameron McKenna LLP.

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