In Willmott Dixon Housing Ltd v Newlon Housing Trust, an issue arose over the service of the referral notices on the adjudicator and the responding party (Newlon) in two adjudications that had been referred on the same day, to the same adjudicator, Mr John Riches. It transpired that Newlon did not receive the referral notices until after it had served its responses. Consequently, the adjudicator was asked to confirm when he received them.
What the adjudicator did
Although the adjudicator sent correspondence dealing with the issue at the time, he subsequently included a statement of fact in both of his decisions dealing with service:
“On 8 November 2012 I wrote to the parties confirming that my copy of the Referral served on the correct date had been found.”
Statements of fact in the adjudicator’s decision
I wrote about the service aspects of the judgment at the time, but this “statement of fact” element of the judgment also caught my attention, especially as Ramsey J said:
“…there is merit in [Wilmott Dixon’s] submission that, by incorporating the statement that he had the Referral document within his Decision, the Adjudicator stated as a fact that the Referral document had been served on the correct date. That was a finding or statement of fact within the jurisdiction of the Adjudicator which is not open to challenge on this application.”
This means that, at least with an adjudication conducted under the CIC rules, provided the adjudicator’s decision is valid (that is, there was no breach of the rules of natural justice) and made within jurisdiction, any statements of fact set out in the decision cannot be challenged in enforcement proceedings.
Open to challenge?
However, this led me to think whether this principle could extend to other findings that may hitherto have been considered open to challenge. For example, what if an adjudicator made a finding that a party was entitled to recover the adjudicator nomination fee in circumstances where this was not expressly provided for by the adjudication provisions?
My understanding is that such a cost is a party cost usually borne by the party applying to the ANB for the appointment of an adjudicator. However, if an adjudicator awards such a cost in the absence of an express power to award party costs, is that a finding made outside of jurisdiction or a finding (assuming my understanding is correct) that is incorrect in law but nevertheless binding and within the adjudicator’s jurisdiction? If the latter, this may be a further extension of the extent to which an adjudicator’s decision, or parts of a decision, are not open to challenge.