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The essence of time for adjudicators During the last few months there have been several cases which show the importance of time in construction adjudication. Although arising out of construction adjudication and time limits imposed by litigation, the principles are of general application - if the rules are that something has to be done within a particular time then, in the absence of a mechanism for extension, failure to comply has dire consequences. Firstly, and most controversial, is within the judgment of HHJ Peter Coulson in Hart Investments ltd -v- Fidler & Anor in which he decided that a delay of even one day in referral of the dispute was fatal to the adjudication. While neither the judge nor counsel could find any direct precedent, many adjudicators are sure that they can recall this matter in a previous judgment but no-one has yet found it! The requirement is that the dispute shall be referred not later than 7 days after the notice of intention to refer and there is no provision for extension. The attitude among adjudicators generally (but with some notable exceptions) has been that a delay will (usually) only disadvantage the Referring party itself, by giving an additional period of notice to the other party. Rejection of the Referral, due to delay, would only cause more delay and cost by having to start again. The sensible solution has always been to allow the late referral to proceed. I am happy that I have not yet had to make that decision although I have been representing a responding party in the situation. In arriving at his decision, Judge Coulson had referred to the judgments in Simons Construction -v- Aardvark Developments and Ritchie Bros -v- David Philips Commercials, both of which were in respect of the late delivery of the adjudicators Decision which has a strict date with restricted rights of extension. The other cases are in respect of the late delivery of the Decision. Aveat Heating Ltd -v- Jerram Falkus Construction Ltd was under the GC/Works contract which contained the term 'The adjudicator's decision shall nevertheless be valid if issued after the time allowed' but the court (HHJ Havery) decided that this did not comply with the Construction Act, therefore the Scheme for Construction Contracts applied. The same judge came to the same conclusion in Epping Electrical Co Ltd -v- Briggs & Forrester (Plumbing Services) Ltd which was under CIC adjudication rules and which contained a similar term to Aveat Heating. HHJ Peter Coulson was again involved in Cubitt Building & Interiors Ltd -v- Fleetglade Ltd in which the adjudicator, on the day before his day for completion, informed the parties that his Decision had been made but still needed to be checked and proofed and asked whether the parties would be in a position to settle his invoice as he intended to operate a lien. Judge Coulson listed four principles, the result of which is that a Decision which is not reached within 28 days (or the extended period) 'is probably a nullity' and that the Decision may be communicated outside that period provided that it is communicated forthwith. In that case, the adjudicator had complied but there is a warning that the Decision cannot be delayed, whether for the exercise of a lien or other and that the adjudicator may have to provide evidence as to when the Decision was made. I am glad to say that Judge Coulson has echoed my thoughts precisely except that I have always added the warning that, if the Decision is late, the adjudicator may lose entitlement to any fee whatever! Peter Horne |
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