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The adjudicator should avoid idiosyncratic language in his decision

The principle that, even if the adjudicator makes an error of law or fact, the decision will be enforced, is well established. Equally, parties are familiar with the slip rule that allows the adjudicator to correct mistakes after the decision has been sent out. But what happens when the adjudicator’s choice of language makes the decision vague or ambiguous?

This issue came before the Technology and Construction Court (TCC) in Vision Homes Ltd v Lancsville Construction Ltd. Here the adjudicator’s decision included the following:

“The effect of the Agreement is that LCL and Vision dumped the JCT. The remaining Works was to be done ‘as & when’ using as best they can guidance from rates and prices in the original deal. The events completely left behind the EOT machinery, out went the LAD’s. No one really knows what EOT might be due at July 2008, nor how to re-fix completion dates. Gone too is all the sophisticated machinery of partial possession, part LAD’s. Vision can’t claim LAD’s. LCL can’t claim loss and expense. Vision is to simply pay LCL a fair rate for the jobs done and LCL can come and go to site as reasonably required by Vision. At a glance it appears a mess. It is not. It is an extremely sensible arrangement given Vision thought LCL was in its death throws. Vision benefited from whatever work LCL did eventually do. So does LCL provided Vision pays up for that work.”

Vision challenged the decision in a Part 8 application, arguing it was void and of no effect because it was vague and ambiguous. It cited expressions such as “dumped the Rule book”, “dumped the JCT” and “Out went the LADs” as examples.

It is easy to see why Vision might argue this. The judge described the language as “idiosyncratic”.

On the facts, the judge did not have to address this issue in any detail since he found the contractor did not comply with the appointment process in the Scheme (this rendered the adjudicator without jurisdiction in any event). However, but for that technical default, the judge would have upheld the adjudicator’s decision. In obiter comments the judge said that the adjudicator’s decision that the parties had “dumped the rule book” was not made without jurisdiction, nor had he exceeded his jurisdiction when he decided the basis of the contract between the parties.

The judge’s obiter comments may surprise some people; they may have expected him to agree with Vision.

Lessons that can be learned from this

As an adjudicator, I think there are a few simple lessons that can be learned from this judgment:

  • It is good practice to provide reasons for your decision, even if you are not required or requested by the parties to do so.
  • In your reasons, set out the logic that you have applied in arriving at your decision on an issue. This is particularly important in a complex case.
  • Choose your language carefully. Do not leave the parties in any doubt about what you are saying.
  • Avoid terminology that is colloquial or idiosyncratic. I don’t doubt that the parties understood what was meant by “dumped the rule book”, but it gave Vision the opportunity to challenge the decision. Don’t open the door to an enforcement challenge unnecessarily.
  • Be clear about how far you think your jurisdiction extends. If you think you lack jurisdiction on an issue, say so. Coulson J may have described my view of my own jurisdiction as “a little too modest” in Workspace Management Ltd v YJL London Ltd, but it is preferable for a decision to be made within jurisdiction than outside it. See my blog post for more.

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