Dalkia Energy And Technical Services Ltd V Bell Group Uk Ltd

Clause 12.4 of the sub-contractor's terms and conditions was in accordance with the Construction Act and the adjudicator had therefore been validly appointed by reference to those terms and conditions
 
DALKIA ENERGY AND TECHNICAL SERVICES LTD V BELL GROUP UK LTD
Technology and Construction Court
Coulson J
21 January 2009
 
 
Clause 12.4 of the sub-contractor's terms and conditions provided that whilst the adjudicator notified his decision to the parties not later than 28 days from the date of the referral to him, the adjudicator's decision was nevertheless to be valid if issued after the time allowed. Section 108(2)(c) of the Construction Act provides that the adjudicator must reach his decision within 28 days of referral. The contractor contended that the provision in clause 12.4 that the adjudicator's decision was nevertheless to be valid if issued after the time allowed did not comply with section 108(2)(c) of the Construction Act.
 
Coulson J rejected that decision. Clause 12.4 was in accordance with section 108(2)(c) in providing that the adjudicator's decision was valid if issued after the time allowed. The sub-contractor was correct to submit that whilst Judge Havery's decision in Epping Electrical Company v Briggs and Forrester (2007) was concerned with time limits for reaching the decision, clause 38A5 of the contract in Aveat Heating v Jerram Falkus Construction (2007) dealt solely with when the decision was issued and did not deal with when the decision was reached. The difference between when a decision was reached and when it was issued to the parties was a matter that had been considered in a number of authorities. Clause 38A5 and clause 12.4 merely reflected the decisions in those cases to the effect that an adjudicator had a certain (small) amount of leeway in the issuing of his decision. Judge Havery was therefore wrong to say what he said in Aveat, albeit that in any event it did not affect his conclusion. Whilst a decision had to be reached within the mandatory time limits (with the result that Judge Havery's decision in Epping was correct), it was settled law that the adjudicator did have a short additional period in which to issue his decision provided it was reached within the statutory time limits. Whilst whether the actual delay in issuing the decision after it had been reached invalidated the decision always depended on the facts of the particular case, the general statement that a decision reached within the time limits could be issued after the expiry of the time limits was in general accordance with the law.
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