Lewisham Homes Ltd (“LH”), the Claimant in the proceedings, sought enforcement of an adjudicator’s decision against the Defendant, Breyer Group PLC (“Breyer”) for the payment of £2.7 million (plus VAT) awarded in respect of defective fire doors. The Claimant brought this action on the basis of successive adjudications on the matter, which dealt with liability and quantum issues. The Defendant sought to stifle the claim by arguing that the adjudicator in the sixth adjudication did not have jurisdiction, because he had already decided the issue of potential damages in an earlier decision (decision number 2). 

The parties entered into a contract for the installation of 7,000 new fire doors and other improvement works at social housing developments. The new doors failed to meet the required safety standards and were deemed defective. Subsequent adjudications arose in relation to liability and recovery of remediation costs.  LH alleged that Breyer had failed to discharge its obligations under the contract in selecting the non-compliant fire doors, and sought £3.75 million in damages. In the second adjudication, the adjudicator stated that LH was not entitled to a payment on account of the damages sought, because Breyer’s obligation to rectify at no cost had not yet been triggered by the contract. Breyer later failed to propose a remedial scheme to the approval of LH’s fire expert, which led LH to instruct an alternative contractor to replace the doors. Further to this, in the sixth adjudication the adjudicator decided that Breyer must pay £2.7 million (plus VAT) for the rectification costs.  

The Defendant argued that the adjudicator had no jurisdiction to decide the sixth adjudication because the dispute was the same, or substantially the same, as the second adjudication. It was submitted that the adjudicator had already determined the quantum issue in his earlier decision where he rejected LH’s payment on account claim, and consequently, the adjudicator’s award should be set aside. The Defendant also noted that the circumstances of the two adjudications were the same, alleging that nothing had changed in the factual matrix to warrant a new decision being made. 

Finding in favour of the Claimant, the Judge ruled that the two adjudications were neither the same, nor substantially the same, and so the adjudicator did have jurisdiction to decide the dispute and make the award. Critically, the Judge distinguished the disputes on the basis that the core issues were different, because the second adjudication related to Breyer’s liability for breach of contract, which was not considered in the sixth adjudication. The Judge also contrasted the initial quantum issue regarding the payment on account, stating that this claim for an interim sum was altogether conceptually different to the matter of a final award for damages dealt with in the sixth decision. The argument that the factual matrix had not changed was also rejected firmly. The court ordered that the adjudicator’s award should be paid to LH within 14 days.  

This judgment gives a helpful steer on how the court may analyse whether or not two disputes are the same, or substantially the same. Notably, the court will take into account a comparison between the core issues; any differences in the facts and evidence put forward for each dispute; and finally, the distinction between interim payment decisions and final award decisions.