Edmund Nuttall Ltd V Sevenoaks District Council
Technology and Construction Court
14 April 2000
It was common ground that the adjudicator had made a mistake in part of his decision awarded the contractor a sum in respect of loss and expense (as a result of delay and disruption) which had already been paid by the employer on account. Notwithstanding this mistake the contractor nevertheless brought court enforcement proceedings for the whole of the decision to be enforced by way of summary judgement.
Dyson J held that the “mistaken part” of the decision should not be so enforced. This was despite the fact that in his view the instant case could not be distinguished from his own decision in Bouygues v Dahl-Jensen (1999) by reason of the adjudicators in both cases having answered the right question wrongly. In Bouygues Dyson J held that a decision should be enforced despite any errors of fact or law unless the adjudicator had not answered the question referred to him.
However, the adjudicator in the instant case (unlike in Bouygues) quickly realised that he had made the error and informed of the parties that he would have corrected the error if he had had the jurisdiction to do so. In the instant case it was at least arguable that the adjudicator had the power to amend his decision by correcting the error in the light of the decision of Judge Toulmin in Bloor Construction v Bowmer & Kirkland and in effect did correct his decision by his letter to the parties acknowledging his error (assuming he had the power to do so). Even if it was not arguable, an appeal from the judge’s decision in Bouygues was due to be heard with the result that it was arguable that it would be held by the Court of Appeal that an error of fact or law would provide the employer with a good defence in law.
It is now established law that an adjudicator’s decision will be enforced despite the adjudicator having made a mistake in fact or in law (provided that he did not act outside his jurisdiction for any reason, for example answering a question not actually referred by the claimant). However, this case demonstrates a limited exception to this “general rule” in the case of a mistake in the decision as long as the adjudicator quickly realises the error and informs the parties accordingly.