Kenneth T. Salmon MCIArb, Consultant Solicitor, Slater Heelis Ltd.
This article considers recent decisions on the enforcement of adjudicators’ awards. The Act means the 1996 Act as amended[1].
The effect of ‘advice’ in a decision
Sleaford Building Services Ltd v Isoplus Piping Systems Ltd[2]
The unusual feature of this case was the claim for relief by the referring party that the adjudicator “advise” the parties on two issues: whether the subcontractor had been negligent in the way it had installed certain fittings and whether the payment ‘prerequisites’ had been complied with. The adjudicator duly gave her ‘advice’ though it was clear from her decision she did not intend her advice to be binding. The court pragmatically decided that the ‘advice’ (whether right or wrong) was binding until there was a final determination, as it did not impact the core findings as to valuation and payment or the validity of the decision.
Broad Justice at high speed
Atalian Servant AMK Ltd v B W (Electrical Contractors) Ltd[3]
Under the contract, the final account statement was ‘final and binding’ unless modified by agreement or the payee commenced adjudication or court proceedings within 20 working days. Adjudication (and court) proceedings were commenced within that time. The first adjudicator resigned and a second adjudication notice was served. The court held that the adjudication proceedings did not come to an end on the resignation of the first adjudicator, and BWE had followed the correct procedure in serving a new notice. Also, it found there was no procedural unfairness. The adjudicator gave due notice to the parties of his line of thinking on what was termed ‘beck and call’ and the number of man hours worked, inviting comment. AMK responded in detail and repeatedly on these matters. The court noted the adjudicator undertook “a nigh impossible task”, considering an enormous volume of materials in such a short time meaning the decision was bound to involve “broad justice at high speed”.
Payment provision – ‘days’ or ‘clear days’
Elements Europe Ltd v FK Buildings Ltd[4]
The successful party (Elements) applied to enforce the adjudicator’s award in its favour and the loser (FK) brought Part 8 proceedings to decide a short point of construction of a payment provision in a JCT standard form which, if upheld, would mean the award was wrongly made. Although the parties settled after a full hearing, judgment was given by agreement as it dealt with a point of some importance concerning the date and time of the making of payment applications. The court held that the requirement in contract clause 4.6.3.1 to make a payment application “to be received not later than 4 days prior to the Interim Valuation Date for the relevant payment …" did not mean 4 ‘clear days’ before that date, but 4 days before the date, meaning it could be done on the fourth day before that date. The payment application in question was sent outside site working hours but received by at least one recipient on the evening of the fourth day. Hence it had been validly made. The law did not deal in parts of a day.
Read the full case summaries on Ciarb’s website.
Find the right adjudicator through Ciarb’s panel of construction adjudicators.
[1] By the Local Democracy, Economic Development and Construction Act 2009 Pt 8
[2] [2023] EWHC 969 (TCC) Mr Alexander Nissen KC 28 April 2023
[3] [2023] CSIH 18 Lord President Carloway, Lords Woolman and Pentland 18 April, 2023
[4] [2023] EWHC 726 (TCC) Mr Justice Constable 30 March 2023
