Citation: [2017] EWHC 2395 (TCC)
This was an application by Jacobs for an injunction restraining Skanska from proceeding with an adjudication. A dispute had arisen between the parties as to the adequacy of the design services provided by Jacobs. Skanska gave notice of its intention to refer the dispute to adjudication and the parties agreed an ad hoc timetable. Skanska’s counsel became unavailable and, two days before the deadline for the submission of its reply, Skanska sought an extension of time. Both Jacobs and the adjudicator refused this extension. Skanska withdrew its reference to adjudication and invited the adjudicator to resign, which he did. A few months later Skanska gave notice of its intention to submit the dispute to a second adjudication.
Jacobs commenced Part 8 proceedings seeking an order, among others, that in proceeding with a second adjudication Skanska were acting unlawfully. O’Farrell J refused the requested injunction. She held that there is no express or implied restriction in the 1996 Act or the Scheme preventing a party from withdrawing a disputed claim and then recommencing another adjudication. There is, however, a power to grant an injunction to prevent an adjudication under section 37 of the Senior Courts Act 1981.
O’Farrell J held that the conditions for the exercise of the section 37 power had not been made out. It was unreasonable for Skanska to withdraw the claim; the unavailability of counsel was not a good excuse. However, this did not remove Skanska’s right to pursue the claim in a second adjudication. For the court to intervene, the second adjudication also had to be oppressive. That was not the case here because Jacobs could reuse much of the material that it had prepared for the first adjudication in the second adjudication. In so far that Jacobs had wasted costs in defending the first adjudication they would be entitled to those costs from Skanska.
Justin Mort QC acted for the Defendant.
