REUTERS | Ilya Naymushin

Sometimes it is tough being an adjudicator

Sometimes it is tough being an adjudicator or, at least, it appears that way. You only have to read the judgment in Geoffrey Osborne v Atkins Rail to realise that it isn’t always an easy job. On the other hand, when I read the judgment in ROK Building v Celtic Composting (No 2), I had to smile. There was a situation where, as far as I could tell, the adjudicator had acted in an exemplary manner.

Geoffrey Osborne v Atkins Rail

Geoffrey Osborne is the sort of case that we adjudicators have nightmares about. The judge said the adjudicator had made a “short but significant error”. The judge also said the adjudicator’s decision was (but for the mistake) “a model of its kind”. Those two statements don’t really seem to sit together very well and it will be of little consolation to the adjudicator or the parties that a “model decision” was wrong, even if it was only a little bit wrong!

In Geoffrey Osborne, the adjudicator was asked to assess the value of two items. He did this. The judge said that the adjudicator should have also worked out what sum was payable for these two items. The adjudicator should have done this by working out the difference between the total amount assessed in interim certificates, and the amount paid to date. That would have given him the balance due. The adjudicator didn’t do this. He seemed to think that he had not been asked to insert his own value into the certificate. As a result, he ignored the amounts already paid by Atkins and, instead of deciding that there had been an overpayment of over £400,000 (which his own figures showed), he awarded a further payment of £504,000. In effect, this meant that Atkins would pay about £900,000 too much for these two items. It is no surprise that Atkins took “every possible point in its efforts to resist the enforcement of [the] award”.

The judgment mentions that the adjudicator was asked to correct this error, presumably under the slip rule (it doesn’t say). The adjudicator declined to do that. The judgment doesn’t discuss the slip rule, or whether an amendment of the sort the adjudicator was asked to make would fall within the scope of the slip rule. I wouldn’t like to second-guess why the adjudicator did not do this, but I’m sure he had his reasons. His decision on costs (which the court upheld), may have been one. I’m not sure how the certificate point could have been changed, without having an impact on the costs part of his decision.

ROK Building v Celtic Composting

This was another case that featured the slip rule. Here Celtic, the “losing party”, attempted to persuade the adjudicator to amend his decision, using the slip rule. There was a contractual slip rule, allowing “accidental errors or omissions” to be corrected within five days of the decision. The adjudicator accepted that he had made a few typographical errors, and re-issued his decision. However, he refused to go any further, saying that he was “functus officio” and could not review the substance of his decision.

Celtic wouldn’t let the matter go, writing again to the adjudicator and, ultimately, challenging enforcement of the decision. Celtic raised a number of grounds, including the adjudicator’s failure to use the slip rule, as requested. Celtic argued this was a breach of the rules of natural justice.

I was pleased to see that the judge had very little time for Celtic’s argument. I also welcomed the judge’s comments that, when it comes to deciding whether to use the slip rule, the adjudicator is the one best placed to consider whether there is an accidental error or omission.

All too-often parties try to get adjudicators to amend decisions they are unhappy with. It’s fine, when the slip rule can be used properly, to give effect to what the adjudicator had intended (see my recent blog post for more on this). But sometimes, as here, the requests go too far. Parties need to understand what the slip rule is, and how it operates. They should not ask too much of the adjudicator.

Leave a Reply

Your email address will not be published. Required fields are marked *

Share this post on: