REUTERS | Damir Sagolj

An appeal of the adjudicator’s decision, or was it?

The TCC’s judgment in RWE Npower Renewables Ltd v J N Bentley Ltd got me thinking about the possibility of “appealing” an adjudicator’s decision. While we all accept that adjudicators’ decisions are of a temporary or interim binding nature, in practice, court or arbitration proceedings rarely follow on from the majority of decisions. That means many decisions stand as determining the parties’ rights and obligations forever (which sounds a very long time!).

But what if you don’t like the adjudicator’s decision, is there anything else you can do rather than proceeding to a full blown trial?

Applying for declaratory relief

Parties have long had the right to seek declaratory relief from the courts under CPR Part 8 (and its predecessors). It is a procedure that has often been used alongside adjudication to deal with jurisdictional issues and questions of contract interpretation.

It isn’t a new thing to use the courts to “appeal” an adjudicator’s decision either, although the courts don’t like it called that. For example, see Coulson J’s comments in Walter Lilly & Co Ltd v Dmw Developments Ltd, where he rejected an argument that a Part 8 application should not be entertained because it was effectively an appeal from the adjudicator. He concluded it was open to either party to come to court for a final decision on the points considered by the adjudicator.

He added only one proviso: if a party wants to use the “short-cut of Part 8”, it must be possible to deal with the dispute “within its relatively tight confines”. By that he meant that there shouldn’t be any factual dispute between the parties (such as over alleged defects), requiring the court to consider witness evidence and so on.

RWE Npower Renewables Ltd v J N Bentley Ltd

The issue of an “appeal” wasn’t directly before Akenhead J in RWE v Bentley, since there was no enforcement issue or anything like that. The parties were before the court because RWE had brought Part 8 proceedings seeking declaratory relief over the construction of certain contract clauses and a priority of documents clause.

However, I noticed that tucked away in paragraph 15 of the judgment there was reference to the fact that RWE “lost” an adjudication before Mr Wilmot-Smith QC, the adjudicator. The judgment sets out what the adjudicator decided in relation to the parties’ dispute, which seems to be contrary to the declaratory relief that Akenhead J grants.

That looks to me like an appeal of the adjudicator’s decision, regardless of what the parties and the court called it. As the saying goes, if it looks like a dog and barks like a dog, it probably is a dog.

Coulson J said “the attraction of Part 8 is that it offers the means by which a dispute can be finally determined in a speedy and cost-effective way”. Because of this, I’m surprised that we don’t see more Part 8 applications in the TCC addressing aspects of adjudicators’ decisions. Perhaps others know why that is.

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