Nil desperandum

The contract for the £2.6m construction works at Denham Place had a completion date of 12 February 2004. Damages for any delay would run at £1000 a day. Vascroft Contractors called on the architect to use the JCT extension of time machinery since, by now, the job was 546 days past the completion date. The architect awarded none of it. Vascroft called for the adjudicator. Its notice of adjudication pointed to the information previously put to the architect and asked for the 546-day extension. The adjudicator awarded none of it. He said that there was insufficient evidence placed before him to prove any extension. That's that.

Well, not quite. The employer now asked Vascroft for £1000 × 546 days' damages. The money didn't come, so the employer began its own adjudication to call for an order to pay the cash. Vascroft responded with the defence that it was entitled to an extension of time. To prove it, it supplied 400-pages of all-singing, all-dancing proof. The employer politely told Vascroft where to put its 400 pages; it told the adjudicator, too. The adjudicator said that the contractor's right to an extension of time had been decided in adjudication number one. So he awarded the damages claim for 500 plus days. The fun wasn't over yet. Vascroft wouldn't obey the award. So the employer came to court to enforce it.

Now then, if you read the judgment, be very careful. The judge explains how in JCT a contractor may apply for an extension of time on one ground and be refused. But it can come again on different grounds, even for the same period of delay, and be successful. It is always open to the employer or contractor, if dissatisfied with the architect's decision about extension of time, to bring on the adjudicator. Multiple adjudications are ordinary for extensions of time.

The judge decided that the 400-page extension-of-time commentary ought to have been let in to the adjudication. The reason given is that the document was substantially different to the previous effort. The important point is that phrase "substantially different". Apparently it identified a number of different causes of delay not canvassed previously in any adjudication.

Go one step further: the extension of time machinery obliges the contractor to give "up to date" particulars about delay events. These are put under the nose of the architect, who then has to decided whether an extension of time is permitted. And once the architect ha decided what time is to be awarded the whole matter can come to the adjudicator for their review. It can come to the adjudicator many times. And each time the contractor may be able better to explain its case, as happened with Vascroft.

The judges agreed if the notice of adjudication was written in wide terms it was open to the parties to run new arguments in statements of case

The judge in Quietfield Ltd vs Vascroft Contractors Ltd gave great credit to a fellow judge in the case William Verry (Glazing Systems) vs Furlong Homes last year. That case introduced us to "kitchen sink" adjudication. Both judges agree that if the notice of adjudication is written in wide terms it is open to the parties to run any new arguments in statements of case. Call this "open" adjudication. The judge in Verry vs Furlong also explained a "closed" adjudication. It is open to a referring party to restrict the scope of the adjudicator by narrowly defining what is to be decided. A "closed" adjudication can ask an adjudicator to decide an extension of time or liability for liquidated damages based on the information previously provided and argued over. In the Vascroft case that would have stopped Vascroft from introducing its 400-page extension of time document in the adjudication. Vascroft would then have had to bring its new extension of time claim within the JCT machinery for the architect to assess and decide before it could come to the adjudicator.

As it happened, Vascroft was not shut out by a "closed" notice of adjudication, although it could not bring into this adjudication a separate reference. And that must be the right approach. The 28-days were intended only to adjudicate what was in the bag. True, a minor piece of "development" or a set of observations about the arguments must be okay. But the real answer is to think hard about the scope of the notice of adjudication. In Verry vs Furlong and in this Quietfield vs Vascroft the notice was "open" and thereby implicitly invited any defence.

Credit: Simone Lia