In regular court proceedings there is a recognised concept known as ‘abuse of process’, which in effect means you can’t play the system and misuse an established court process without a clear and justifiable legal reason.
Whilst this seems fair, and acts as a protection to both the respondent and the court, a recent case in the Technology and Construction Court has shown that it is a concept which doesn’t automatically apply to adjudications.
The case in question is Jacobs UK v Skanska Construction UK , where Jacobs were attempting to stop Skanska form restarting an adjudication which had previously been withdrawn.
The facts show that during the initial adjudication Skanska ran into difficulties when their barrister was unexpectedly unavailable and, as a result, they were unable to reply to the initial referral and response documents. When it became clear that an extension to the agreed timetable would not be granted, Skanska withdrew the adjudication and the adjudicator subsequently resigned.
Approximately two months later Skanska tried again. They served a notice of intention to refer the dispute to adjudication and, whilst they claimed that there were some differences this time round, this was in effect the same matter.
Jacobs objected because they had already incurred costs related to the initial adjudication which, through no fault of their own, had been abandoned. They also claimed that they had a right to a process which was neither unreasonable or oppressive and so, with this mind, the adjudication should not be allowed to go ahead.
This raises an interesting question. Given that by their very nature adjudications can favour the referring party, as they have control over the timing and scope of the matter, should they also have the freedom to start and stop adjudications at will.
According to the presiding judge, the answer seems to be yes and no. With no concept of ‘abuse of process’ for adjudications, it all boils down to whether the referring party’s actions could be construed as being unreasonable and oppressive. In this case at least it seems that this was only half true.
In restarting an adjudication which Skanska had willingly withdrawn from due to their own compromised situation, restarting it once they had arranged appropriate legal counsel may be viewed as unreasonable but not oppressive. It was unreasonable because Jacobs would once again be incurring unrecoverable costs relating to what was essentially the same dispute, however it wasn’t unduly oppressive, at least not yet.
Some might say that given that this was the first time Skanska had sought to restart the adjudication, and that there were clear grounds for stopping it before, the judge was right to let it proceed. But does this mean that the referring party can keep stopping and restarting an adjudication as many times as they like? At what point does it become oppressive?
Whilst there is no hard and fast rule, it could be a dangerous game to play. Repeatedly starting and stopping an adjudication for no good reason, other than to provide an unfair advantage to the referring party or to place an oppressive burden on the other side, could lead to an application to the court for an injunction. The resulting expense incurred, and the uncertainty of outcome, could well outweigh the benefits of any Machiavellian schemes.