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Mon August 08 2022

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Adjudicator did not communicate decision "in reasonable time"- Decision void

9 Jul 10 The Technology and Construction Court has ruled that an adjudicator did not communicate his decision to the parties in a "reasonable time" as required by the Scheme for Construction Contracts and it was unenforceable.

CP applied to the RIBA for the appointment of and adjudicator. Before the adjudication had started, Ms. Lee raised a number of matters with the adjudicator, including the validity of the Notice of Adjudication and that any dispute had crystallised. Ms. Lee reserved her position on the adjudicator’s jurisdiction.

The adjudicator asked for an extension of time from 9th November 2009 to 13th November in which to provide his decision. Both parties agreed, but on 12 November, the adjudicator wrote that he anticipated reaching his decision by midday on the 13th, but warned that some items would require typing and that he would have to re-read it so that it would not be in a format which could be e-mailed until Monday 16th November. Ms. Lee did not reply but CP agreed.

At 2.48pm, the adjudicator sent both parties an e-mail stating that he had reached his decision and would issue it on Monday the 16th. The decision was issued late in the afternoon of the 16th, with the note “Made the 13 November 2009 under my hand” above his signature. He awarded CP £39,265.09 plus costs. Ms. Lee paid none of the award. She argued that the decision was invalid on a number of grounds, one of which was that the adjudicator’s decision had been issued late.

An adjudicator must reach his decision within 28 days of the referral or within 42 days if the referring party consents. The parties may agree a longer period if they so wish. The evidence established that the adjudicator had reached his decision no later than 2.48p.m. on Friday 13 November 2009. The decision was issued by e-mail at 4.57p.m. on the 16th. The parties had agreed an extension which included the 13th. In effect, the adjudicator had not been asking for an extension in which to reach his decision but some additional time for delivering it. The Scheme required him to issue a copy of his decision as soon as possible after reaching it, and he had been asking for relief from that obligation.

The only issue was, therefore, whether he had delivered his decision “as soon as possible after” he had reached it. There was no evidence which explained why it took the adjudicator three days to deliver his decision. The adjudicator worked for a large firm and it was not unreasonable to assume that it could have been typed promptly. The adjudicator could have set aside time to read it through with the aim of communicating it in a shorter time even though a weekend was imminent. There was no good reason why, with a little effort and application, the decision could not have been communicated on the 13th or why the whole of the working day of the 16th had passed before the decision was dent out. The decision had not been issued “as soon as possible” and it was unenforceable.

Lorraine Lee v Chartered Properties (Building) Ltd., [2010] EWHC 1540 (TCC)

View more new cases reported on this week's bulletin with Bliss Books Construction Law Service 

Also in this Week’s Subscription Bulletin:

Adjudication- Balancing Accounts on Insolvency;

The jurisdiction of adjudicators to consider items raised for the first time in the adjudication response;

Acceleration of works and penalties for delay in France in construction projects;

Time and acceleration issues affecting international construction contracts: the German approach;

The evaluation of contractors' overhead claims in construction. 

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