DISPUTE HELD TO BE THE SAME OR SUBSTANTIALLY SIMILAR

In Carillion Construction Ltd v Smith [2011] EWHC 2910 (TCC), [2011] All ER (D) 121 (Dec) Mr Justice Akenhead held that an adjudicator had no jurisdiction to decide the dispute which he had been asked to decide because the dispute referred to him was the same as the dispute which had previously been referred to adjudication before a different adjudicator. The judgment of Akenhead J demonstrates that, when seeking to decide whether the dispute referred to adjudication is the same or substantially similar to a dispute previously referred to adjudication, it is necessary to pay careful attention to the evidence (which may be voluminous). While each case ultimately depends on its own facts, Akenhead J provided some helpful guidance which can be applied in future cases when seeking to decide whether the dispute referred to adjudication is the same or substantially similar to a dispute which has already been referred to adjudication.

The facts

The claimants were employed as contractors in connection with the refurbishment of a hospital in Liverpool. The defendant, Mr Smith, was invited to tender for the supply, installation, testing and commissioning of underground water and gas pipeline systems for the project. He did so in the name of a company which traded as Underground Pipeline Services Ltd of which he was the sole proprietor. The claimants subsequently sent an order for the works which was expressed to be ‘subject to the terms and conditions contained within the Sub-Contract Agreement attached.’ It was accepted by the parties that these terms governed the relationship between the parties.