ENTERPRISE MANAGED SERVICES LTD V TONY MCFADDEN UTILITIES LTD

If the adjudicator had taken more of a grip on the adjudication process (as he should have done), it was likely that he would have concluded that the adjudication could not be properly or fairly progressed and that the right course of action was for him to resign
 
 

Technology and Construction Court
Coulson J
2 December 2009
 

Coulson J held that the adjudicator did not have jurisdiction in relation to the claim brought by the sub-contractor's assignee against the replacement contractor and that a declaration should be made which aborted the adjudication process currently in train. Whilst the adjudicator's conduct in the adjudication was not part of the reasoning as a matter of law in resulting in the declaration, the judge wished to express his views on the adjudicator's conduct in any event. He concluded that if the adjudicator had taken more of a grip on the adjudication process (as he should have done), it was likely that would have decided that the adjudication could not be properly or fairly progressed and the right course of action was for him to resign.
 

It was immediately clear to everyone that the sub-contractor's assignee's disputed final account claim was very extensive, complex and paper heavy and could not be addressed within the 28 day period for the adjudication process under the Construction Act. The adjudicator failed to ask himself at the outset whether he could discharge his duty to reach a decision impartially and fairly within that time. Whilst there would have been no difficulty if the parties had agreed at the outset that the adjudicator's time for his decision should be substantially extended, the piecemeal extensions of time asked for by the adjudicator and granted by the parties (albeit reluctantly in the case of the replacement contractor) was not what the Construction Act was designed for. Whilst the adjudicator was right to say that he could not make a binding decision on his own jurisdiction in relation to the jurisdiction points raised by the replacement contractor, he ought to have outlined his conclusions as to jurisdiction when the points were first raised and if he had done so, he would have also seen how important it was for him to decide at the outset whether or not the claim could be dealt with fairly under the summary adjudication process. Resignation would have obviously saved a good deal of time and money, not least the costs of the court proceedings brought by the replacement contractor for declarations.

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