We are discouraged from using Latin tags nowadays, writes Kim Franklin. Were that not the case, I could start with the snappy question, 'does the doctrine of res judicata apply to adjudication?' But in order to abide by modern practice, we must go the long way round.
The outcome of adjudication is something of a lottery and while it works well enough in many cases, in many more, I suspect, it leaves a nasty taste in the mouth of the unsuccessful party. The avour of that taste, (if you get my drift) can be summarised as 'if only?' - 'if only our experts had had more time to work on their report ?', 'if only we had said this, that or the other?', 'if only we had produced those documents, that spreadsheet or that summary?'. In the final analysis it all boils down to 'if only we had had more time to do a better job'. Logically, this line of thinking should lead to the conclusion, 'if only we hadn't bothered with adjudication in the first place'.
Inexplicably however, in some cases, the line of thought seems to lead to 'now we know where we went wrong, let's have another go'.
It is not uncommon for a series of disputes arising out of the same project to be referred to adjudication, one after the other. In court, the common law has developed rules to prevent successive litigation over the same subject matter.
These are encapsulated by the doctrine of 'res judicata' (literally, 'the matter already judged'). In Quietfield Ltd v Vascroft Construction Ltd (Judgment 20.12.06) the Court of Appeal considered the extent to which these rules apply to adjudication.
Quietfield engaged Vascroft to carry out renovation works to Denham Place, a 17th-century mansion in Buckinghamshire. Vascroft referred its claim for an extension of time to adjudication. The adjudicator decided that Vascroft had failed to prove the cause of delay and gave no extension of time.
Quietfield then referred its claim for liquidated damages for the same delay to the same adjudicator. Vascroft defended the claim on the grounds that it was entitled to an extension of time. This time it put its delay claim in a chunky 400-page appendix replete with bar charts, critical path and other analysis. The adjudicator refused to consider this appendix on the grounds that the contractor was trying to have another go at the same claim it had lost in the first adjudication. Was he right to do so?
The court held that a contractor cannot defend adjudication proceedings with a claim which has been considered and rejected in a previous adjudication. Whether the second claim is the same as the first is a question of degree.
In this case the second delay claim was clearly 'substantially different' from the first and ought to have been considered by the adjudicator.
It seems therefore that in adjudication you can have a second bite at the cherry, if you make sure your second claim looks like a substantially different kind of fruit.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com