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Pain before gain

Viewpoint - Should we pay adjudicators before they reach their decisions?

It is tempting to dismiss the questions raised by recent cases handed down in the Technology & Construction Court (TCC) as merely raising 'technical points' (News last week).

However, those familiar with the case law that has developed out of adjudication will understand that the so-called technical points will often highlight the shortcomings in the Construction Act. Indeed most of the case law in the 'adjudication world' has been born out of technical points.

These cases have once again elevated the question of whether an Adjudicator's decision provided to the parties after the 28 day or 42 day statutory periods set out in the Construction Act is valid and enforceable. The issue concerns the question of decisions reached within time but then provided late to the parties.

The key reason for the late delivery of decisions often relates to the timing of payment to the adjudicator by those seeking adjudication.

In Epping Electrical Company Ltd vs Briggs & Forrester (Plumbing Services) Ltd the adjudicator had until 21 November 2006 to reach his decision but having completed his decision on time, declined to release it.

Similarly, n St Andrews Bay Development Limited v HBG Management Limited (2003), the decision was required to be reached by 5 March 2003.

However, the adjudicator refused to release her decision until her fee was paid The question is: what happens if the referring party is unable to pay the adjudicator's fees or decides not to pay (often having formed a view that the adjudicator is going to dismiss their claim)?

Is it right that a responding party should have to wait an inde nite period before nding out what the adjudicator has decided? Or should we follow the words of Lord Nimmo Smith in Ritchie Brothers (PWC) Ltd vs David Philp (Commercials) Ltd (2005) who stated:

'If certainty is an objective [of adjudication], it is not achieved by leaving the parties in doubt as to where they stand after the expiry of the 28 day period.' In Epping Electricals, the judge decided that a decision that had been reached on time but as it was sent to the parties two days late it was not enforceable.

The judge agreed with Lord Nimmo Smith's comments that 'if a speedy outcome is an objective, it is best achieved by adherence to strict time limits'.

If this judicial approach continues it is clear that the 'adjudication world' will need to adapt.

Given that payment of the adjudicator's fees is central to the problem of late delivery it is here where change must be focused. The referring party could make payment on account; the adjudicator could reach the decision a day or so before the deadline and issue the decision on time by issuing at the same time as payment is received. In the era of fax and email, communicating decisions ought not to be a signicant issue.

Following Epping Electricals it appears that decisions reached on time but communicated after the expiry of the time period will be unenforceable and so will be a waste of time.

Hamish Lal is a partner specialising in construction, engineering and project nance law at the London Of ce of Dundas & Wilson.

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