REUTERS | Kim Hong-Ji

When should the adjudicator deliver his decision?

I’m sure most people would say the answer to the question of “when should the adjudicator deliver his decision to the parties?” is as soon as he has reached it. Certainly, I know from experience what it is like when you don’t do that.

Therefore, I was rather surprised to read the judgment in Lee v Chartered Properties, and see that an adjudicator had reached his decision on a Friday (and told the parties so), but not delivered it to them until the Monday afternoon. I wasn’t so surprised by Akenhead J’s reaction, or that he failed to enforce the adjudicator’s decision. 

“As soon as possible”

The Scheme for Construction Contracts 1998 requires the adjudicator to deliver his decision “as soon as possible after he has reached it” (paragraph 19(3)). The court has considered the meaning of this in a number of reported decisionsLee is just the most recent case.

Contrast Lee with Cubitt v Fleetgate

You can contrast Akenhead J’s decision in Lee with Coulson J’s decision in Cubitt v Fleetgate, which Akenhead J obviously had in mind when he reached the conclusion that Mr Slegg’s decision was served out of time.

In Cubitt, I told the parties by email at 10.44 pm on Friday night that I had reached my decision and that it was subject to a final proof and an arithmetical check. The court held that emailing it several hours later, on Saturday morning, was OK. In Lee, Mr Slegg emailed the parties at 2.48 pm on Friday afternoon to say that because of typing and proof reading, the decision may not be ready until the Monday. Akenhead J was surprised that the adjudicator needed another 74 hours:

“It is not an unreasonable assumption to make that within such a large firm, prompt typing could have been arranged… Mr Slegg could have set aside time for proofreading… even though the weekend was looming.”

I was surprised too. My decision was 131 pages long and I only had one person to assist me with proofing!

Reading between the lines, I wonder whether the adjudicator had reached his decision at all, on the Friday. The judgment is silent, but certainty suggests that it may not have been. Why else would Akenhead J have indicated that Mr Slegg’s handwritten decision could have been faxed or scanned and emailed over to the parties on Friday?

There, but for the grace of God, go I

To state the obvious, adjudicators must reach and deliver their decisions within the time allowed by the Scheme, the relevant adjudication rules or the parties. If they don’t, it is highly likely that one party will challenge the validity of the decision. What the court will consider to be a reasonable delay between reaching and delivering the decision will depend on the facts. At the moment, as I see it, the balance of “as soon as possible” appears to hang somewhere nearer 12 hours than 74 hours.

 

One thought on “When should the adjudicator deliver his decision?

  1. I do love your blog as it is refreshingly clear. Judges spend hours rendering 50 page decisions, written of course, in very clear English but one can get a bit lost by page 36!

    Now we know that “as soon as possible” is somewhere between 12 and 74 hours. My wife would contest that. I bet this comes up in the Lords one day and it becomes 11 hours.

    Why not just make a decision, have it typed up, check it and then say I have made my decision and put it on the fax. Adjudicators ought to get smarter and not give the game away!!!!

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