It is established law that an adjudicator cannot determine a dispute which has already been decided in an earlier adjudication. Where a party to a construction project wishes to bring a second adjudication, this can lead to difficult questions of whether the second adjudicator is bound by the earlier adjudication decision. This is because the dispute referred to adjudication in the second adjudication overlaps with or is the same as the dispute decided in the first adjudication.
In the recent Court of Appeal judgment of Sudlows Ltd V Global Switch Estates 1 LTD  EWCA Civ 81 the court considered the test used to establish whether the second dispute is the same as the dispute decided in the earlier adjudication in the context of two adjudications, one following the other, in relation to extension of time entitlement for different periods of delay.
One might naturally be drawn to the conclusion that responsibility for delay for two different periods of time would constitute two distinct and different disputes. The Court of Appeal’s decision is summarised below.
Coulson LJ set out the following guidance for deciding whether a particular dispute has already been decided in an earlier adjudication:
This was a very unusual delay case. It is almost always the case that in serial extension of time disputes, the arguments about delay range across different competing Relevant Events, the different alleged effects of those different Relevant Events and the consequences of different critical path analyses. But none of that was in play, either in the first or second Adjudication here.
In both adjudications, it was agreed that there was only one cause of the relevant delay (cabling and ductwork issues.) That period of delay was also agreed. The only substantive dispute was which party was contractually responsible for those issues, and therefore that delay. Although the period of the extension of time claimed in the second Adjudication was obviously different to that which had been claimed in the earlier Adjudication, nothing else had changed. There were still no other competing Relevant Events, and no other matters said to be on the critical path. Importantly, during this second period, no further work was undertaken by Sudlows, just as no work had been done for much of the period that was the subject of the earlier Adjudication.
In this case the second adjudicator decided he was bound by the earlier adjudicator’s finding that Global was the party responsible for the cabling and ductwork issues but stated in his decision that if he hadn’t been bound by that earlier finding he would have come to a different conclusion on the same issue of contractual liability. This no doubt encouraged Global to challenge his finding that he was bound by the earlier adjudicator’s finding that Global was the party responsible.
Perhaps unsurprisingly, given the nature of Sudlows’ two extension of time claims and given that the first adjudicator had decided Global was the party responsible for the cabling and ductwork issues, the Court of Appeal decided that the dispute in the second adjudication was the same dispute as decided in the earlier adjudication such that the second adjudicator was bound by the finding of the earlier adjudicator, even though the disputes related to different periods of delay. This was because the only substantive dispute was which party was contractually responsible for the cabling and ductwork issues and this had already been decided by the earlier adjudicator. The second adjudicator was therefore right to consider himself bound by that earlier finding.
In line with Coulson LJ’s four points set out above, in the second adjudication Global was asking the adjudicator to do something that was diametrically opposed to that which the earlier adjudicator decided i.e. decide that Sudlows and not Global were responsible for the cabling & ductwork issues which caused the delay (albeit delay for a different period of time in the second adjudication).