CIB Properties Ltd v Birse Construction Ltd

The test to determine whether it was fair that a complex dispute was referred to adjudication was whether the adjudicator was able to reach a fair decision within the time limits allowed by the parties (rather than whether the dispute was inherently too complex to be adjudicated)
 
CIB PROPERTIES LTD v BIRSE CONSTRUCTION LTD

Technology and Construction Court
His Honour Judge John Toulmin CMG QC
19 October 2004
 
 
Judge Toulmin held that the test to determine whether it was fair that a complex dispute was referred to adjudication was whether the adjudicator was able to reach a fair decision within the time limits allowed by the parties (rather than whether the dispute was inherently too complex to be adjudicated). This was on the basis that the Construction Act 1996 conferred the right to adjudication in accordance with a procedure complying with section 108(2) (irrespective of the apparent complexity of the dispute) but that the Act did not require an adjudicator to reach a decision if he was unable to do so within the time limits imposed by section 108(2)(c) and (d).
 
Judge Toulmin pointed out that in AWG v Rockingham Motor Speedway (2004) he had erroneously stated that there might be disputes that were so complex with the advantages of the adjudication procedure so weighted against the defendant that there was a conflict that was impossible to resolve between the rights to refer a dispute to adjudication and to obtain a decision within the statutory time limits laid down by section 108(c) and (d) and the adjudicator's duty to act impartially under section 108(f). The answer to this problem was a party's general right to refer a dispute to adjudication but the absence of any statutory duty on the adjudicator's part to reach a decision if he was unable to do so within the statutory time limits. However, section 108(2) was permissive in that a party was not bound to agree an extension of time beyond the statutory time limits for the process to be concluded (28 days or 42 days on the application of the adjudicator with the claimant's consent), even if such a refusal rendered impossible the adjudicator's task to reach a decision impartially and fairly. Also if a defendant agreed to one extension of time, then it should not be taken as having agreed to further necessary extensions.
 
Advice Note
An adjudicator might legitimately refuse reach a decision in a complex case where he cannot fairly do so within the statutory time period if the claimant does not agree any extension of that time.
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