I appreciate that not everyone will agree but, as well as striving to get to the right answer, correctly applying the law, and so on, most adjudicators also want to provide the parties with a decision that is ultimately enforceable by the TCC. I think I also speak for most adjudicators when I say that it comes as somewhat of a relief when we read a judgment on BAILII or the like and we’ve been enforced.
But what about cases where only part of the decision is enforced, and the other part is severed? It is arguable that for the adjudicator it is, to use the language of the Black Knight in Monty Python and the Holy Grail, “just a flesh wound”. However, I can attest to the fact that it is frustrating, having been one of the first adjudicators to be severed back in 2012 in Beck Interiors v UK Flooring Contractors. I was thoroughly annoyed with myself for getting it wrong and only part of my decision was enforced (but I was assured by my peers that “tis but a scratch”).
The above background is a (very) roundabout way of introducing the topic of today’s post – severance – and, in particular, the severance in CC Construction Ltd v Mincione. I blogged about this case in October 2021, and wrote about some of the interesting aspects of the judgment that are relevant to final statement disputes under JCT D&B contracts. At the time, the judge (HHJ Eyre QC) found that the adjudicator had breached the rules of natural justice by failing to consider the set-off defence. He invited further submissions from the parties on whether he could sever the decision so that the remaining element of the sum due could be awarded. The judgment in round two was handed-down on 9 November 2021 by the same judge (who had become Mr Justice Eyre by then, and to whom I offer my hearty congratulations on his elevation). Continue reading
