“In these circumstances, and in conjunction with only the limited extension of time that has been so far awarded, we consider it is wholly inappropriate to deduct liquidated damages.”
“Mailbox refuses to acknowledge GTB’s self-evident entitlement to extensions of time. GTB will very shortly submit its full extension of time submission (further to the interim ones that have been submitted so far) that addresses all Relevant Events in respect of the Project and substantially covers the period of delay. If Mailbox does not properly recognise GTB’s entitlement as set out in that full extension of time submission, then separate dispute resolution proceedings will follow. Meantime in this Adjudication, GTB wishes the Adjudicator to take account of the following points in order to (i) determine GTB’s entitlements to extension of time for them and (ii) highlight Mailbox’s wrongful approach to claiming LADs in this Adjudication: (a) Delayed start due to lack of Employer fire strategy documentation; (b) Mall steel beams fire protection; (c) Failure by Mailbox to grant possession of section 4 and its impact on section 3.”
“5.3.1 The dispute which the Adjudicator has been asked to decide in this Adjudication is Mailbox’s entire entitlement in respect of the totality of the liquidated damages; a decision which encompasses a decision on responsibility for the totality of the pre-termination delays. 5.3.2 Whilst it is a matter for GTB what material it wishes to rely upon to defend the claim, it cannot limit the Adjudicator’s jurisdiction to determine the dispute referred to him by limiting the defence which it puts forward in the Adjudication. 5.3.3 Furthermore, the Adjudicator’s decision in relation to that dispute will be final and binding unless and until finally determined by legal proceedings or by agreement; and 5.3.4 Thus whilst it is unclear what GTB means by “separate proceedings”
“Those Notices are clearly only concerned with the narrow issue of the interim sum calculated by reference to the Contract’s liquidated damages provisions specifically relating to a particular point in time during the course of the project. GTB’s Response to that narrow issue put forward by the Notices took in three specific events upon which both Mailbox and GTB had already exchanged information (but not the Blackrock report submitted within the Reply). The Response did not put before you all entitlements GTB has to adjustment of the Contract completion date. Thus it is clear that Mailbox is wrong when it asserts the disputes submitted to this Adjudication “encompasses a decision on the responsibility for the totality of pre-termination delays.”
“Mailbox’s Referral Notice does not require me to deal with any requests from Galliford for extensions of time other to note those extensions that had already been granted. Galliford’s defence expressly requests me to only consider their requests for extensions of time on the following issues: (a) Delayed start due to lack of Employer Fire Strategy documentation (b) Mall steel beams fire protection (c) Failure by Mailbox to grant possession of Section 4 and its impact on Section 3 I therefore intend to deal in the Decision with the above three requests for EOT and no others.”
“5.1 This section is intended to provide an outline summary of the dispute and is not an exhaustive and comprehensive recital of the parties’ submission. 5.2 This dispute concerns Mailbox’s claim for the payment of LADs from GTB. 5.3 The progress of the works was the subject of numerous and significant delays which resulted in sections of the project achieving practical completion later than the dates inserted into the contract. 5.4 Mailbox granted GTB extensions of time for some sections of the works, however they consider that GTB are responsible for the remaining delays which are considerable. 5.5 GTB contend that they are entitled to further extensions of time and deny any liability for LADs. 5.6 Mailbox have now terminated GTB’s contract.”
“(i) GTB had elected to limit their defence of the claims for LADs made in this Adjudication for three relevant events and argued that the Adjudicator’s Decision should therefore be similarly restricted. (ii) I concluded that the scope of the Adjudication was determined by the matter stated in the notice and referral and that GTB could not unilaterally restrict the scope merely by limiting the issues upon which they chose to run their defence.”
“12.25 It was accepted that GTC had complete freedom to mount their defence on any grounds they chose and were not obliged to address all of the matters raised in Mailbox’s referral. 12.26 However, Mailbox did not agree that GTC could unilaterally reduce the scope of the Adjudication from that which was defined in the Notice of Adjudication by merely limiting the grounds upon which they mounted their own defence. 12.27 I agree with Mailbox’s position; please refer to the section dealing with jurisdictional challenges for further commentary.”
“In the First Adjudication, I was asked to decide upon Mailbox's entitlement to LAD’s. Although I was not asked directly to determine Galliford’s entitlement to any further EOTs I accept Mailbox’s contentions that it was necessary for me to take this into account in my calculations of the entitlements for LAD’s. However, I made it clear in my Decision that I was only doing so on the basis of the three relevant events expressly claimed by Galliford. I had not decided any EOT entitlement for any other relevant events. My initial review of Galliford’s Referral Notice indicates that they have now included in this Adjudication other relevant events that were not referred to in the First Adjudication. I am therefore persuaded by Galliford’s arguments that I can consider these additional relevant events in this Adjudication.”
“It is, I believe, accepted by both parties, correctly in my view, that whatever dispute is referred to the Adjudicator, it includes and allows for any ground open to the responding party which would amount in law or in fact to a defence of the claim with which it is dealing.”
“…a responding party is entitled to defend himself against a claim for money due by reference to any legitimate available defence (including set-off), and thus such defences will ordinarily be encompassed within the notice of adjudication.”
“23…(d) In my view, one should look at the essential claim which has been made and the fact that it has been challenged as opposed to the precise grounds upon which that it has been rejected or not accepted. Thus, it is open to any defendant to raise any defence to the claim when it is referred to adjudication or arbitration. Similarly, the claiming party is not limited to the arguments, contentions and evidence put forward by it before the dispute crystallised. The adjudicator or arbitrator must then resolve the referred dispute, which is essentially the challenged claim or assertion but can consider any argument, evidence or other material for or against the disputed claim or assertion in resolving that dispute. 24. The corollary of this is that, if a defending party has not prior to the adjudication and does not put forward a particular defence, the adjudicator does not have jurisdiction to address such a defence even if it seems a sensible thing to do to save time and cost later. However, if the crystallised dispute referred to adjudication encompasses a particular defence, the defending party cannot withdraw that defence during the adjudication to fight another day, so to speak, on that particular defence.”
“31. Section 108(3) of the 1996 Act and paragraph 23 of the Scheme provide for the temporary binding finality of an adjudicator’s decision. More than one adjudication is permissible, provided a second adjudicator is not asked to decide again that which the first adjudicator has already decided. Indeed paragraph 9(2) of the Scheme obliges an adjudicator to resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication and a decision has been taken in that adjudication. 32. So the question in each case is, what did the first adjudicator decide? The first source of the answer to that question will be the actual decision of the first adjudicator…”
“Parliament cannot have intended that if a claimant refers twenty disputes or issues to adjudication but the adjudicator only decides one of those disputes or issues, future adjudication about the other matters is prohibited.”