HHJ Stephen Davies sitting in the Technology and Construction Court (TCC) has enforced an adjudicator’s decision, despite the adjudicator failing to review a crucial document that would have reversed his decision.
F Parkinson Ltd (the contractor) had engaged Broughton Brickwork Ltd (the sub-contractor) under a sub-contract. A dispute arose regarding non-payment of a sum which had been demanded by the contractor. In line with the terms of the contract between the parties, the contractor commenced adjudication proceedings.
After reviewing all the documentation provided by both parties, the adjudicator decided that the sub-contractor was under an obligation to pay the contractor the sum originally demanded of approximately £96,000 plus interest. The sub-contractor failed to pay the adjudicators award and the contractor applied to the TCC to enforce payment.
In its Defence to the contractor’s application, the sub-contractor argued that the adjudicator had inadvertently overlooked a key document which, had the adjudicator considered, would have reversed the adjudicators decision.
The key document in question, which had not been brought to the adjudicator’s attention, was an email serving a pay less notice. In deciding that the notice was ineffective because it was served out of time, the adjudicator was not told the fact that the notice had also been served by email (as was permitted in the contract between the parties). Therefore it had actually been served in time.
Whilst this crucial document was in the adjudication papers, it had been referenced incorrectly and as a result had not been specifically brought to the adjudicator’s attention. The adjudicator acknowledged that if he has been made aware of the document in question, he would not have made the decision that he did against the sub-contractor.
The court was not willing to reverse the order of the adjudicator and ordered the sub- contractor to pay the full award of the adjudicator. The court put some of the blame on the sub-contractor, for failing to bring the key document to the adjudicator’s attention.
Whilst this is an unusual situation, it highlights the reluctance of the court to interfere with an adjudicator’s decision. The case also underlines the importance of having skilled and experienced legal representation when conducting and/or responding to adjudications. This ensures that crucial documentation is not inadvertently overlooked.