REUTERS | Jose Miguel Gomez

Clarity is key in an adjudicator’s decision

It was Johnny Nash who sang about seeing clearly back in the early 1970’s. In Roe Brickwork Ltd v Wates Construction Ltd, that wasn’t something Wates thought could be said about the adjudicator’s decision in its dispute with a sub-contractor. Before Edwards-Stuart J, Wates argued that the adjudicator’s decision should not be enforced because it lacked certainty.

Roe Brickwork Ltd v Wates Construction Ltd

The judgment suggests that the parties found themselves in this uncertain position because of the way that the adjudicator dealt with Roe’s claim for a six-month delay to its brickwork works and significant loss and expense. Roe was claiming:

  • £52,000 for additional preliminaries.
  • £121,000 for loss of overheads and profit.
  • £465,000 for loss of productivity.
  • £122,000 for additional supervision and management time.

In his decision, the adjudicator assessed those claims and valued them at £381,000 odd plus interest. He made no findings about the sums that had been paid by Wates to Roe under the individual heads of claim. Instead, he went on to provide that:

“The actual net due shall reflect the amounts already paid under each head of award above. It is payable within 10-days of today. The parties will know what is already paid under each head.”

Wates argued that the parties disagreed over what had been paid under each head and this meant there was no way of knowing what was due as a consequence of the adjudicator’s decision. In effect, Wates was saying the adjudicator was wrong to say the parties knew what had been “paid under each head”.

I must admit a lack of certainty with regard to parts of the adjudicator’s decision is not an argument you see raised very often in enforcement proceedings. Perhaps that demonstrates just how hard adjudicators work to ensure that the parties can understand what it is they are awarding, why they are awarding it and how they have arrived there. This must have been one of those rare occasions when it was not possible to do that, perhaps because the sums paid were not disclosed or, as Wates argued in the enforcement proceedings, because the amounts it had paid towards Roe’s claim were not agreed.

In some ways it is a shame that by the time of the enforcement hearing, Wates had accepted that no more than £98,000 had been paid on account of Roe’s claim. This meant there was no dispute between the parties over the balance and the court could enforce the adjudicator’s decision for a sum of £283,000 odd. I would have been interested to see how the court viewed the decision in the absence of Wates’ concession and whether it would have agreed with Wates that the decision failed for uncertainty.

Answered the right question wrongly?

I’m not sure whether you could argue that the adjudicator answered the right question wrongly with regard to the claim as a whole. However, there is definitely a much stronger argument for saying that when it came to the way he calculated the amount for loss of overheads and profit, something went awry. As we all know, that in itself isn’t disastrous to the enforceability of the adjudicator’s decision, even if it may leave one party feeling more aggrieved than normal.

And back to Johnny Nash, whose words seem to have some degree of relevancy in this situation:

“I can see clearly now the rain is gone
I can see all obstacles in my way
Gone are the dark clouds that had me down
It’s gonna be a bright bright bright bright sun shiny day
It’s gonna be a bright bright bright bright sun shiny day”

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