Challenge adjudication decisions early – or be bound by the result

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Parties must challenge adjudication decisions, or they will be bound by the result, the Technology and Construction Court (TCC) has confirmed. Contractor John Sisk & Son has failed in bid to have an earlier adjudication decision overturned by the court when it was used to support a later adjudication award against the contractor.

Sisk had appointed Prater Limited to carry out works on a new Boeing hanger and office at Gatwick Airport. There were a number of disputes and adjudications about delays and money arising out of the sub-contract. This culminated in Prater asking the TCC to enforce a payment of £1.75 million awarded to it in the fourth adjudication.

The judge ruled that as Sisk had failed to challenge the second adjudication, so it now continued to be bound by its findings.

In court, Sisk argued that the payment was unenforceable as the adjudicator who made the award was relying on an earlier decision in the second adjudication which it said was invalid. Sisk claimed that the second adjudication related to ‘multiple disputes’ which is not permitted under Housing Grants Construction and Regeneration Act 1996.

The judge ruled that as Sisk had failed to challenge the second adjudication, so it now continued to be bound by its findings. As a result Sisk was unable to claim the second adjudication was invalid as part of its defence against payment awarded in the fourth adjudication.

The judge also threw out Sisk’s ‘multiple disputes’ argument. She followed Mr Justice Akenhead’s ruling in Witney Town Council v Beam Construction and held that all the issues considered in the second adjudication were in fact part of one larger dispute.

James Burgoyne, Divisional Director – Claims & Technical, Brunel Professions said: “Parties to a dispute need to act to resolve issues with adjudication decisions if they are unhappy with the outcome – or they are likely find themselves bound by the original decision in any later disputes. In this case Sisk had noted its dissatisfaction with the outcome of the second adjudication at the time, but it had not taken this forward. This was tactically unsound in what became clear was a chain of adjudications building toward an outcome Prater desired.”

Reports about the case have been published by Macfarlanes, Shoosmiths and Stevens & Bolton.

Brunel provides a wide range of PII broking services to construction professionals. Click here to find out more or call Jonathan Filer on +44 (0)117 325 0752.

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