Parkcare abandoned its adjudication claim after both parties had incurred substantial costs. The adjudicator directed that Parkcare should pay JRA's costs plus his own fees and disbursements. These costs were assessed at £87k. Parkcare refused to pay saying that the adjudicator did not have jurisdiction to make such a direction. The contract between the parties provided that the agreement for the appointment of the adjudicator should be as set out in the CIC model procedure. However, clause 28 was deleted and replaced with the following:
"The Adjudicator may in his discretion direct the payment of legal costs and expenses of one party by another as part of his decision. The Adjudicator may determine the amount of costs to be paid or may delegate the task to an independent costs draftsman."
Here, the adjudication had been discontinued apparently because the adjudicator had decided that he had no jurisdiction to decide the dispute. HHJ Havery QC found that the meaning of clause 28 was plain. The adjudicator could only, as part of his Decision, direct the payment of legal costs. Here no decision was reached. Therefore the adjudicator had no jurisdiction to decide the question of liability for costs. JRA also suggested that a term could be implied that the adjudicator should have power to order the payment of costs. HHJ Havery QC rejected this too.
The HGCRA does not allow parties to an adjudication to claim their costs. However, it is open to parties to a contract to agree to that option. Here, the parties had agreed that the adjudicator only had jurisdiction to decide to make an award of costs as part of his decision relating to the dispute. It was wrong to imply such a term into the contract. It neither represented the obvious intentions to the parties nor was it necessary to give business efficacy to the contract.