Adjudication: Redwing Construction Ltd v Wishard

Citation: Redwing Construction Ltd v Wishard [2010] EWHC 3366 (TCC) – 2/12/10

The Facts

The Claimant (C) was employed by the defendant (D) under a standard JCT Prime Cost Building Contract (2006 Rev. 1 with amendments) to complete a refurbishment of a domestic property.  The contract provided for C to be paid the Prime Cost, the Contract Fee and any direct loss and/or expense ascertained under the contract.  A number of variations were ordered and C did not complete the Works by the original Date for Completion of 12 December 2008, Practical Completion not being achieved until 31 July 2009.  An extension of time was awarded until 31 January 2009 but C’s applications for extensions of time up to 1 May 2009 were disputed and referred to adjudication (the First Adjudication).  There was then a subsequent adjudication (the Second Adjudication) relating to whether D was entitled to an adjustment of the Contract Fee rate.  D brought proceedings to enforce the Second Adjudicator’s decision.

The court had to determine (1) whether the dispute decided in that Second Adjudication had been effectively decided in the First Adjudication and (2) whether the Second Adjudicator’s correction or amendment to his decision went beyond the correction of a clerical error. 

Held (Akenhead J)

The crystallised dispute referred in the First Adjudication was as to (a) the further extension of time to which C was entitled and (b) a consequential entitlement to the Contract Fee at the rate of £3,500 a week. The argument that reference in the Notice of Adjudication and the Referral seeking payment of the “Contract Fee in the sum of £3,500 and/or loss and expense (or such other sum as the Adjudicator shall determine)” was sufficient to encompass any claim for an adjustment of the Contract Fee weekly rate was rejected.  There was no crystallised dispute at that stage in relation to any possible adjustment to that rate. Further, on the facts there was no evidence that the First Adjudicator had subsequently been granted jurisdiction on that issue.  Although the First Adjudicator had made a finding of fact and direction precluding any adjustment of the Contract Fee he had no jurisdiction to make that finding or direction and that part of his decision was tangential or obiter to what he was required to and did decide on the disputes referred to him.  The Second Adjudicator did therefore have jurisdiction to rule upon C’s entitlement to an adjustment of the Contract Fee rate and the Second Adjudication decision was enforceable.

The Second Adjudicator had made a very obvious error and was applying the Slip Rule when correcting that error.  The revision to the Second Adjudication decision was also reached within a reasonable time as it came out within two days of the original decision.