Can you adjudicate twice on same breach of contract?
In the recent case of Dawnvale Cafe Components Ltd v Hylgar Properties Ltd [2024] (TCC), there was an issue whether one party could refer to a second adjudication, a new claim for additional losses arising from the same breach of contract oe whether the terms of the parties settlement agreement precluded such action.
Following a first adjudication, Hylgar had agreed to pay Dawnvale and the terms of the settlement agreement stated: ‘The payment of the Settlement Sum is in full and final settlement of any and all claims the Claimant may have against the Defendant arising from or in connection with these proceedings’.
Two years later Hylgar sought to recover further losses from the original breach of contract.
The Judge held that the works ‘these proceedings’ referred to the enforcement proceedings relating to the first adjudication. They could not be construed to include the wider contractual dealings between the parties. Further that whilst the new claim arose from the same contract, it could not be said to arise from or be in connection with the previous enforcement proceedings.
Further that the new claim was not the same or substantially the same as the dispute in the first adjudication as it concerned different issues. The second adjudicator was being asked to decide further heads of loss arising from that breach – there was no overlap.
Also that both parties had received legal advice on the settlement and if they had intended to settle all future claims they could have done so by referring to all claims arising from the contract etc.
For these reasons, Hylgar was entitled to refer its new claim to adjudication.
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