The parties' submissions
130 Mr Kidd submitted that there had "been a repetitious use of the adjudication process in relation to claims already adjudicated and rejected, in circumstances where there has been no change to the scope or value of the relevant works, no [material] change to the amounts claimed for that work… and the same evidence has been relied on to support the claims in the subsequent adjudication" (written outline, para 42). Further, he submitted, "[t]he fact that the repeated claims were included in a payment claim together with a large number of other claims to which the defendant was required to respond, merely compounds the abuse" (ibid, para 43). That was because Watpac was required to respond, within the short timeframe allowed, not merely to the substantial new claims but also to the claims that had been made and dealt with.
131 Mr Corsaro submitted that the December payment claim and January application included "legitimate and fresh claims which [Austin] was entitled to make and which [Watpac] was required to defend" (written outline, para 18). Thus, he submitted, Watpac was required to defend itself anyway; there was always going to be a claim which would proceed to adjudication. He referred to what I had said in Urban Traders at [59].
Decision
132 In Urban Traders at [59], I said that I was prepared to conclude that the reagitation of the claims in question was an abuse of process. I gave three reasons for that. The first was that the claim was foredoomed to fail because it was the subject of issue estoppel. The second was that the builder was seeking to get a better outcome from the second adjudicator than it had got from the first. The third was that the builder had obtained judgment on the first adjudicated amount, and was essentially seeking to reopen the basis on which it obtained that judgment.
133 However, as I pointed out [60], the reagitated claims were essentially severable, and the abuse of process was limited to the extent of the reagitation.
134 I set out paras [59] and [60]:
[59] Were it necessary to do so, I would conclude also that the reagitation of the claims in question amounts to an abuse of process, insofar as that concept is capable of application to the scheme of interim dispute resolution contained in the Act. That is so for at least three reasons. First, the claim, being barred by issue estoppel, is foredoomed to fail. Secondly, the builder seems to be doing no more than seeking, from a second adjudicator, a better result than it got from the first. There is nothing in payment claim 21 to suggest that there are some new circumstances or material that might warrant reconsideration of the claims in question. Thirdly, the builder has obtained judgment for the amount determined by the first adjudicator. In essence, it now seeks to reopen the basis on which it obtained that judgment.
[60] However, the claims in question are not the major part of the claims raised by payment claim 21: either in absolute terms or (and again acknowledging for the moment Dr Greinke's other submissions) those claims shorn of the claims for loss of profit and cost of repricing. Further, in my view, they are readily severable. It is easy enough to go through payment claim 21 and, by comparing it with a table helpfully annexed to the adjudicator's determination, to identify the variations that are sought to be reagitated.
135 Perhaps of more relevance to Mr Corsaro's submissions, I had said, at [42], that a matter to take into account in deciding whether there was an abuse of process was whether the respondent would be required to defend itself in any event. That is certainly the case in these proceedings, because on any view there were fresh claims raised.
136 Nonetheless, I think, the first two reasons that I gave in Urban Traders at [59] for concluding that there was an abuse of process can be applied directly on the facts of this case. The third factor does not arise because, there having been no adjudicated amount, there was no judgment to be recovered on the November determination. However, I was not intending to suggest that there would have been no abuse of process apart from the concurrence of the three reasons. On the contrary, in my view, each of those reasons was (in Urban Traders) capable of supporting the conclusion. Equally, each of the first two reasons, applied in the context of this case, is capable of supporting the conclusion that there is an abuse of process.
137 Further, in this case, it may be noted that although the ground of the application changed, the evidence relied on did not. That confirms that the resubmitted claim was no more than the old claim dressed up in new clothes.
138 In any event, as Somervell LJ pointed out in Greenhalgh at 257, it may be an abuse of process to make a claim on one ground then, when it fails, re-make it on another. Although his Lordship was speaking in the context of civil litigation, what he said should be applied, in my view a fortiori, in the context of the Act.
139 In my view, it is an abuse of the processes established by the Act for a claimant in Austin's position to put a substantial and detailed claim on one carefully articulated ground and, when that claim fails, to remake it on a substantially different ground that could have been advanced, but was not, when the claim was first made. It is difficult enough for respondents in the position of Watpac to deal with complex payment claims within the timeframe allowed by the Act, without having to consider, and waste management and perhaps other resources on, repetitious claims.
140 For those reasons, I would conclude, were it necessary to do so, that the reagitation of the claims for variations 1 to 8, in the December payment claim and January application, was an abuse of the processes of the Act.