Sherwood and Casson Limited v McKenzie

Citation: EWHC 274 (TCC) (adjudication enforcement)

Nature of case:

Mackenzie engaged Sherwood & Casson as sub-contractors on a construction project.  A dispute over an interim payment was referred to adjudication, which was decided in Sherwood’s favour.  Following that decision, Sherwood submitted a final account, which included certain variations which were the subject of the adjudication decision, but which sums were different to those previously claimed.  The final account also included claims arising from the prolongation of the works, and a detailed response to certain contra charges which Mackenzie had raised in the first adjudication.  This final account gave rise to another dispute, which was referred to a second adjudicator.  The second adjudicator held that the dispute as to the valuation of the variations was not substantially the same as that involved in the first adjudication, but that the contra charges issue had been decided, and he was bound by the decision of the first adjudicator.  He decided that a further sum was due to Sherwood.

The present case was Sherwood’s claim for summary judgment, in response to which Mackenzie argued that the disputes in the second adjudication had been largely or substantively the same as those in the first, and so the adjudicator had no jurisdiction to decide them.

HHJ Thornton held that the adjudicator had jurisdiction to decide whether disputes before him were substantially the same as those decided in a previous adjudication.  The court could review that decision where there were substantial grounds for believing that the adjudicator erred, but that was not the case here.  Judgment was granted in favour of Sherwood.

Link to Judgment

Counsel

Simon Hughes QC

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