REUTERS | Tobias Schwarz

Who will be the adjudicator?

Last week I wrote about Bovis v Cofely, looking at whether the sixth adjudicator should have resigned. Other aspects of Coulson J’s judgment also caught my eye.

Amendments to adjudication provisions in standard form contracts must be clear

The parties failed to properly amend the sub-contract. They either wanted Mr Smith as the named adjudicator, or the RICS as the adjudicator nominating body (ANB). By not being entirely clear, when Bovis apparently had had enough of Mr Bingham (who was appointed through a RICS nomination five times), it was able to resort to legal arguments about how the sub-contract should be interpreted.

If the sub-contract had been clear from the outset (which, I’m sure, Cofely thought it was), there would have been no argument. I note Coulson J described Bovis’ argument as “much too convoluted” and that it relied on “a very circuitous route to get to the identity of Mr Smith”. With better drafting, the parties could have avoided both the expense and time of the CPR Part 8 application.

Be sure you want the Scheme to apply to an adjudication

Coulson J’s obiter comments on what would happen if he’d found the sub-contract failed to include a nominating process reflect a common sense approach.

If the Scheme was implied into the contract (which would be the case if the contract failed to comply with section 108 of the Construction Act 1996), then the RICS would be one of a number of nominating bodies the parties could approach. Ergo, Mr Bingham would still have been properly appointed and have jurisdiction to deal with the fifth adjudication.

If the parties did not want the Scheme to govern an adjudication, that is another reason why they should have ensured amendments to the sub-contract were clear.

Estoppel by convention may not help you, despite what you both think

Coulson J suggests, obiter, to find an operable estoppel would be tantamount to a variation of the sub-contract, without consideration. It was not enough, he says, that the parties proceeded on the assumption that the RICS should nominate the adjudicator.

I was a little surprised by these comments. I bet Cofely was too!

Parties should be aware that things may not always be as they seem. They may not be doing the right thing, even if they both think that they are. For its own reasons, Bovis didn’t play fairly. It “played ball” with Cofely four times, and then tried to take the ball away on the fifth occasion.

and finally…

Adjudicator’s previous decision on jurisdiction

I’m sure no-one was surprised that the court found that the parties had agreed to be bound by the adjudicator’s decision on his own jurisdiction, but only in relation to the second adjudication. Jurisdiction arguments are often raised, but they are limited to the particular facts and circumstances of that dispute.

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