Kenneth T. Salmon MCIArb, Consultant Solicitor, Slater Heelis Ltd.
This article examines recent court decisions regarding the enforcement of adjudicators awards. The Act is the 1996 Act, as amended[1].
The impact of “advice” in a decision
Sleaford Building Services Ltd v Isoplus Piping Systems Ltd[2]
This case was unusual in that the referring party asked the adjudicator to “advise”, or give advice, the parties about two things: whether the subcontractor was negligent when it installed certain fittings, and whether payment ‘prerequisites” had been met. The adjudicator gave her “advice” even though it was obvious from her decision that she did not intend for her advice to be enforceable. The court decided pragmatically that the ‘advice,’ whether right or wrong, was binding until a final decision was made. It did not affect the core findings regarding valuation and payment of the claim or the validity or the decision.
Broad Justice in high speed
Atalian Servant AMK Ltd. v B W Electrical Contractors Ltd[3]
The final account statement is ‘final and binding,’ under the contract. This applies unless the parties have agreed otherwise or the payee has commenced court or adjudication proceedings within 20 days. Within that period, adjudication (and court proceedings) were initiated. The first adjudicator quit and a new adjudication notice had to be served. The court ruled that adjudication proceedings were not terminated by the resignation of the initial adjudicator and BWE followed the correct procedures in serving a second notice. It also found that there was no unfairness in the procedural aspects. The adjudicator informed the parties about his position on ‘beck-and-call’ and the number man hours worked and invited comments. AMK answered these questions in great detail and repeated them several times. The court stated that the adjudicator had undertaken “a near impossible task” considering the enormous volume of material in such a brief time frame, meaning the decision would have to be “wide justice at high speeds”.
Payment Provision – “days” or “clear days”
Elements Europe Ltd. v FK Buildings Ltd.
The winning party (Elements), applied to enforce an adjudicator award in its favor and the losing party (FK), brought Part 8 proceedings in order to determine a brief point of construction in a JCT form payment provision which, if accepted, would mean that the award had been made incorrectly. The parties agreed to a judgment by agreement, even though they settled the case after a full trial. It dealt with an important issue regarding the time and date of making payment requests. The court held that contract clause 4.6.3.1, which required a payment to be made “not later than four days prior to Interim Valuation date for the relevant payment …””, did not refer to four ‘clear’ days, but rather to four days, meaning that it could be made on the fourth day of the Interim Valuation date. 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 the date, but four full working days. This meant it could be done on the fourth day before the date. It was therefore validly made. The law does not divide a day into parts.
View the full summaries of cases on Ciarb’s website.
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[1] By 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