CHRISTOPHER LINNETT LTD v HARDING
The adjudicator’s agreement with the responding party formed by conduct incorporated his standard terms of engagement despite the responding party not having raised expressly agreed to them
The adjudicator's agreement was formed by conduct and based on the responding party’s participation in the adjudication, albeit on a without prejudice basis, and his request that services be provided by the adjudicator as evidenced by the emails. That conduct was effective against a background in which the responding party also knew that those services were only being offered on the basis of the adjudicator's standard terms of engagement when there were no other terms in play. The responding party’s conduct was to request the services on and subject to those terms. Whilst the responding party could have raised objection to the terms within 7 days, as provided for in clause 2, he did nothing to dispel the impression that he was content with their application. The responding party’s statement that the parties were to be jointly and severally liable for fees in equal measure was not inconsistent with their application. Whilst the responding party refused to sign the adjudicator’s questionnaire, he did not suggest that he expressly refused to do so because he did not agree with them. Whilst his failure to object to the terms did not in itself give rise to an agreement by silence as to their application, silence was relevant to the question of whether the agreement concluded by conduct was on those terms.
The responding party’s submission that his conduct was consistent with the application of the Scheme for Construction Contracts for the purposes both of the adjudication agreement and adjudicator's agreement should be rejected because (i) Had nothing been said or done by anyone at the time, that submission would have been appropriate but (ii) Once the terms had been sent out, it was for the responding party to say that he did not accept them since otherwise the conduct which formed the basis of his acceptance of the offer would be conduct on those terms. If an adjudicator, or an entity on his behalf, sends out terms which include a rate of payment to which one or both of the parties expressly objects (i) Such a party can still conclude an adjudicator's agreement by conduct but (ii) The contract would be on the basis that there was no agreement that the rate was applicable and (iii) In the absence of any further discussion, the entitlement would be to payment of a reasonable fee as an implied term.