Serial adjudications: the Court of Appeal provides clarity

United Kingdom

A recent Court of Appeal judgment has overturned a TCC decision as to whether an adjudicator was bound by a previous adjudication decision as to the existence of Relevant Events justifying an extension of time under the JCT Design and Build form. The adjudicator decided that in granting a further extension of time in relation to the same events he was bound by the findings made in the previous adjudication. The Court of Appeal’s judgment provides welcome clarity in this area and emphasises the primacy of the actual decision reached in the prior adjudication over a broader analysis of dissimilarities between the two adjudications.

When does an adjudicator’s decision have binding force?

It is well understood that adjudication decisions are binding on parties until their dispute is finally determined by court or arbitration proceedings. This is one of the requirements for a valid adjudication clause mandated by section 108 of the Housing Grants Construction and Regeneration Act 1998 (as amended) and is also reflected in paragraph 23 of the Scheme for Construction Contracts (the “Scheme”). It is important to note that only the adjudicator’s “decision” is binding and not the reasons which are given in support of the decision. What comprises the “decision” has been said to include the actual award as well as any other finding “that forms an essential component of or basis for that award” (Hyder Consulting (UK) Ltd v Carillion Construction Ltd). For example, where a decision had awarded £X on the basis that a contractor was entitled to an extension of time of Y weeks, the extension of time finding would be an essential component of the award of £X and both would be binding in future adjudications.

A related principle often found in adjudication rules, including paragraph 9 of the Scheme, is that a dispute cannot be referred to adjudication where it is the same or substantially the same as one which has previously been referred and decided upon. For example, in Quietfield Limited v Vascroft Construction Limited, a contractor had failed to establish an extension of time in an earlier adjudication. It then sought to establish the same extension of time in defence of a subsequent adjudication by the employer claiming liquidated damages. It was permitted to do so because different and more detailed evidence was relied upon in the subsequent adjudication so that the dispute was not the same or substantially the same as in the prior adjudication.

A recent Court of Appeal decision has clarified the operation of these two principles in a case where an adjudicator had declined jurisdiction due to what he concluded was the binding effect of a previous adjudication decision as to extensions of time.

Global Switch Estates 1 Ltd v Sudlows Ltd

Global Switch engaged Sudlows to upgrade a specialist data centre in East London under an amended JCT Design and Build 2011 contract. The project saw a number of adjudications between the parties. The present proceedings concerned a fifth and sixth adjudication.  

Part of Sudlow’s scope of work required it to install heavy cables underneath a main road through ductwork installed by others. One of the cables was damaged during the process and Sudlows claimed that the ductwork was defective. Installation of the cables was then removed from Sudlows’ scope of works and the cables were installed by others. However, Sudlows then refused to terminate, connect and energise those cables on the basis that Global Switch had refused to take responsibility for what Sudlows contended was a novel and untested cable installation.

In the fifth adjudication, Sudlows claimed an extension of time arising from these events for a period described as “Window 29”. The adjudicator accepted Sudlows’ claim and awarded an extension of time of 234 days within Window 29. The adjudicator found that this delay arose from the defective ductwork and Sudlows’ reasonable refusal to terminate, connect and energise the cables installed by others, both of which were found to be Relevant Events entitling Sudlows to an extension of time.

A sixth adjudication was commenced by Sudlows after Practical Completion in relation to payment. Sudlows’ payment claim included loss and expense in relation to Window 29 and also in relation to the period between Window 29 and Practical Completion (referred to as “Window 29+”). An extension of time was also claimed for this period based on the same Relevant Events as found in the fifth adjudication.

Global Switch claimed that the adjudicator in the sixth adjudication, Mr Molloy, was not bound by the findings as to Relevant Events made by the adjudicator in the fifth adjudication. It also relied on new evidence as to these events which showed that the cables Sudlows had complained of had been successfully energised and tested. Accordingly, it argued that Mr Molloy should consider the question of entitlement afresh in relation to Window 29+ and in relation to loss and expense for Window 29. Global Switch accepted that the extension of time awarded by the previous adjudicator for Window 29 could not be challenged.

Mr Molloy determined that he was bound by findings made in the fifth adjudication as to Relevant Events. He considered these to form an “essential component” of the decision in the fifth adjudication as to the extension of time awarded for Window 29. He therefore proceeded to award an extension of time for Window 29+ on this basis, together with loss and expense.

Before the TCC, Mr Justice Waksman disagreed with the adjudicator. He considered that Mr Molloy ought to have given greater focus to whether the fifth and sixth adjudications concerned “the same or substantially the same” dispute rather than limiting himself to an analysis of the decision in the fifth adjudication. In Waksman J’s judgment, the fact that the sixth adjudication concerned a different period of time and the introduction of new evidence meant that the two disputes were not the same or substantially the same. For a more detailed analysis of the TCC’s decision, please see our earlier Law-Now here.

The Court of Appeal

The Court of Appeal overturned the TCC’s decision and agreed with Mr Molloy’s analysis of the binding nature of the decision in the fifth adjudication. The Court emphasised the primary need to consider what the first adjudicator actually decided when considering the extent to which that decision impinged on a subsequent adjudication. Mr Molloy had been justified in determining that the decision in the fifth adjudication had determined Sudlows’ entitlement to an extension of time. The very same entitlement was in issue in the sixth adjudication. The fact that a different delay period was in issue and that new evidence had been presented was not sufficient to render the dispute different from the fifth adjudication when regard was had to what the fifth adjudicator had actually decided.

The Court of Appeal also highlighted a number of points of general application in relation to the binding nature of adjudication decisions:

  • The need for speed and temporary finality in serial adjudication cases means that adjudicators (and the court if necessary) should be encouraged to give robust and common sense answers to questions of binding force: “It should not be a complex question of interpretation of documents and citation of authority.”
  • For similar reasons, it is important that these sorts of questions are primarily left to adjudicators themselves: “The court should only intervene when something has gone clearly wrong in a later adjudicator's decision.”
  • There is a need for flexibility and the test is one of fact and degree. A balance is to be struck between preventing the re-adjudication of claims or defences which have unequivocally been rejected, whilst ensuring that claims or defences which are essentially new are not shut out.
  • The analysis in the Hyder case and the search for an “essential component” requires some care and should not be allowed to become too granular (albeit there was no problem with the Hyder analysis carried out by Mr Molloy in this case).
  • One way of testing whether a second adjudication should be allowed to continue is whether, “it would or might lead to a result which is fundamentally incompatible with the result in the first adjudication.”

Conclusion and implications

This is an important Court of Appeal decision which provides some welcome clarity in a difficult area of adjudication law. As noted in our earlier Law-Now, the overall direction of the cases in this area had been against giving overly generous effect to previous adjudication decisions and a greater focus on the disputes referred in each adjudication and whether they could properly be regarded as the same or substantially the same dispute. The decision in this case provides somewhat of a corrective, emphasising that a proper analysis of what was actually decided in the prior adjudication is to be given primary importance.

As noted in our earlier Law-Now (for which, click here), the TCC’s judgment had sought to minimise the effect of the fifth adjudication by finding that liability had not been determined “for all times and all purposes going forwards”. This raised a number of questions of wider importance, such as the legal basis on which an adjudicator could decide something for a specific purpose only and reserve the right for a different decision to be reached for other purposes. Whilst there is no reference to this line of reasoning in the Court of Appeal’s judgment, the Court’s emphasis on the terms of the actual decision in the prior adjudication would not appear to be supportive of such an approach.  

Of considerable note is the Court’s insistence that a subsequent adjudicator’s view of the binding force of a previous adjudication decision is not to be disturbed unless something has “gone clearly wrong”. The legal justification for giving such elevated standing to an adjudicator’s ruling on a what is a matter of jurisdiction is not stated in the Court of Appeal’s judgment and bears comparison with the absence of any such standing in relation to other jurisdictional issues. The Court’s approach on this issue appears to be anchored in a desire to avoid undue complication and uncertainty for parties involved in serial adjudications, where much time and ink is often spent on arguments over the effect of previous decisions.

The advice given in our previous Law-Now as to the inclusion of more detailed requests for relief within a Notice of Adjudication also receives support from the Court of Appeal’s decision. The Court’s emphasis on the actual decision reached by the prior adjudicator makes it more likely that a decision made in response to a specific request for relief will be considered binding – although the question will always remain one of fact and degree as the Court has noted.


Quietfield Limited v Vascroft Construction Limited [2007] BLR 67

Hyder Consulting (UK) Ltd v Carillion Construction Ltd [2011] EWHC 1810 (TCC)

Sudlows Ltd v Global Switch Estates 1 Ltd [2022] EWHC 3319 (TCC)

Sudlows Ltd v Global Switch Estates 1 Ltd [2023] EWCA Civ 813