Buxton Building Contractors Ltd v Governors Of Durand Primary School

The adjudicator's decision was unfair by reason of his failure to consider all the issues in dispute and to take into account all the documents and information submitted by the employer contrary to paragraphs 17 and 20 of the Scheme for Construction Contracts
 
BUXTON BUILDING CONTRACTORS LTD V GOVERNORS OF DURAND PRIMARY SCHOOL

Technology and Construction Court
His Honour Judge Anthony Thornton QC
12 March 2004
 
The contractor incorporated IFC 98. The contract administrator certified practical completion and the making good of defects. Defects appeared after the issue of these certificates and the employer incurred expense in rectifying them. The employer served notices stating that it intended to set-off the expense it had incurred against the second half of the retention monies. The contract administrator issued an "interim certificate" releasing the second half of the retention monies. The contractor submitted an invoice for the amount of the retention monies which the employer refused to pay and referred the dispute to adjudication.
 
In the adjudication the employer submitted copies of all the correspondence that had passed between it and the contractor that fully identified the nature of its cross-claim and its other contentions. The adjudicator was invited by the contractor in its reply submissions to ignore the submissions, documents and issues referred to him by the employer on the ground that that they were irrelevant by reason of no effective notice of intention to withhold payment having been served. The adjudicator did ignore them and made his decision in the contractor's favour.
 
Judge Thornton held that the decision was in a public law sense sufficiently unfair as to lack enforceable validity and potentially both exceeded the adjudicator's jurisdiction and had been reached in breach of his statutory obligations. This was on the basis that the adjudicator failed to consider or decide all the difficult questions and issues in dispute in the adjudication (in the form of the contentions advanced by the employer) and to take into account all the documents and information submitted to him by the employer contrary to the requirements for him to do so in paragraphs 17 and 20 of the Scheme for Construction Contracts. In particular the adjudicator did not consider one of the employer's principal arguments to the effect that one of the purposes of the retention was to provide the employer with a fund to reimburse it for the kind of loss that made up its cross-claim.
 
Advice Note
An adjudicator must be careful to consider and decide upon all issues put before him during the course of the adjudication.