For many months now, we have all been discussing the changes the amendments to the Construction Act 1996 will have on various aspects of adjudication. Most commentators have focused on three things: an end to contract conditions that require one party to pay for the adjudication, regardless of the outcome; the adjudicator’s ability to direct payment of his fees; and the “in writing” rule for construction contracts being a thing of the past. By comparison, the slip rule changes have occupied few column inches and appear to have “slipped by” almost unnoticed. No doubt this is, in part, because there is little to criticise in these proposed changes.
While on the subject of the slip rule, it has also been some time since there has been a case that has dealt with it. Therefore, I was a little surprised, but nonetheless pleased, to see the detailed analysis of the scope of the slip rule in Ramsey J’s judgment in O’Donnell Developments v Build Ability.
Ramsey J’s judgment confirms the well-established principle (dating back to Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd) that an adjudicator can correct “slips” in his decision, provided he does so promptly and, by doing so, is only giving effect to what he intended in his original decision. As Ramsey J put it, the adjudicator was not “giving effect to second thoughts or intentions but of giving proper effect to his first thoughts.”
The slip rule is an important tool for the adjudicator. After all, we are only human and, from time to time, are prone to the same failings as everyone else. We make accidental errors or omissions in our arithmetic. Sometimes we make other mistakes. This may be because the parties have not provided us with the correct information. Alternatively, as in O’Donnell, the adjudicator may misunderstand the information that is provided. As the adjudicator said in correspondence about his decision:
“…in addressing the question of whether [O’Donnell] was entitled to further payment… my failure to account for the fact that the amount paid to date included [a sum for loss and expense awarded in adjudication seven] was an inadvertent slip and did not reflect my intention [to award O’Donnell the balance due on valuation 25]…”
It is important that when an adjudicator asks for information, such as “how much has been paid to date?”, he is told the answer in clear terms, without ambiguity. Had both parties in this case made it clear that the £12.8 million (which they both agreed had been paid) included a sum of £148,500 relating to loss and expense in adjudication seven, then it is arguable the adjudicator would not have included that sum in his calculation and then he would not have needed to rely on the slip rule to correct it.