Skanska Construction UK Limited v ERDC Group Limited (1) and John Hunter (2)
Case reference:
[2002] ScotCS 307
Thursday, 28 November 2002
Key terms: Interdict (injunction) - interim suspension - interim payment - final account - same dispute - loss and expense - waiver
Skanska was the main contractor seeking an injunction to halt the second adjudication between Skanska and ERDC. ERDC was a landscaping sub-contractor that had been employed by Skanska on the DOM/C/Scot form of sub-contract. Skanska was seeking an interim interdict (injunction) which would have had the effect of bringing the second adjudication to a halt. An adjudication had been referred and concluded in respect of valuation no. 7. Part of that adjudication in respect of valuation no. 7 included a claim for direct loss and/or expense of £261,812.57. Mr Fiddes as adjudicator decided on 30th January 2002 that Skanska were not obliged to pay anything as ERDC had provided “insufficient information” in respect of their claim for direct loss and/or expense.
In September 2002 ERDC commenced a second adjudication in respect of the final account. Once again a sum (albeit a different amount) was included in respect of direct loss and/or expense.
Skanska objected to the second adjudication on the basis that the dispute was the same or substantially the same as the first one previously referred. The second adjudicator considered that he had jurisdiction to proceed, on the basis that the second adjudication was a final account dispute, whereas the first was merely a valuation dispute.
Lady Paton’s opinion was that she did not agree that the dispute referred was substantially the same as that referred in the first adjudication. She held that a different stage of the contract had been reached, different contractual provisions applied and that considerably more information was available by the time of the final account, and that therefore different considerations and a different perspective applied. Skanska had also argued that ERDC’s arguments in respect of the final account were time barred as the 6 month post practical completion period had expired. Lady Paton considered that a strict time bar would require very clear unambiguous language, and there was no such contractual time bar in this instance. Further, Skanka’s acceptance of the first adjudicator’s request for further information amounted to a waiver of any time bar that might have applied. Therefore, she refused to grant the interim interdict or interim suspension.
In September 2002 ERDC commenced a second adjudication in respect of the final account. Once again a sum (albeit a different amount) was included in respect of direct loss and/or expense.
Skanska objected to the second adjudication on the basis that the dispute was the same or substantially the same as the first one previously referred. The second adjudicator considered that he had jurisdiction to proceed, on the basis that the second adjudication was a final account dispute, whereas the first was merely a valuation dispute.
Lady Paton’s opinion was that she did not agree that the dispute referred was substantially the same as that referred in the first adjudication. She held that a different stage of the contract had been reached, different contractual provisions applied and that considerably more information was available by the time of the final account, and that therefore different considerations and a different perspective applied. Skanska had also argued that ERDC’s arguments in respect of the final account were time barred as the 6 month post practical completion period had expired. Lady Paton considered that a strict time bar would require very clear unambiguous language, and there was no such contractual time bar in this instance. Further, Skanka’s acceptance of the first adjudicator’s request for further information amounted to a waiver of any time bar that might have applied. Therefore, she refused to grant the interim interdict or interim suspension.