Mott MacDonald Ltd v London

The adjudicator's breaches of paragraphs 12(a) and 19(3) of the Scheme for Construction Contracts rendered his decision unenforceable and probability a nullity
 
MOTT MACDONALD LTD v LONDON & REGIONAL PROPERTIES LTD

Technology and Construction Court
His Honour Judge Anthony Thornton QC
23 May 2007
 
The period of time for the adjudicator to reach his decision was extended from 28 days by 14 days to 42 days. Some 6 days before the adjudicator was to reach his decision, he faxed a letter to the parties in which he stated that he had reached his decision and that the referring party was to pay his fees and expenses prior to him releasing his decision in accordance with this letter confirming his appointment. On the day for the decision's release the contractor paid the adjudicator's fees and expenses. The adjudicator sent copies of the decision by post on the day it was paid which were received the next day by the parties.
 
Judge Thornton refused to enforce the adjudicator's decision in the consultant's favour in the light of the adjudicator's conduct set out above on the basis that he was in breach of paragraphs 12(a) and 19(3) of the Scheme for Construction Contracts. Paragraph 12(a) provides that the adjudicator is to act impartially in carrying out his duties in accordance with the contract. Paragraph 19(3) provides that the adjudicator is to deliver a copy of his decision to the parties as soon as possible after he has reached it.
 
Judge Thornton noted that there was a long line of decisions in the Technology and Construction Court in which it had been held that a decision not delivered promptly by the most rapid means of delivery was invalid. The rationale for this principle that a decision not delivered promptly by the most rapid means of delivery was invalid was that (a) adjudication was intended to be a rapid and informal means of resolving disputes on a temporary basis with the result that all adjudication rules, including the Scheme for Construction Contracts, provided for the adjudicator to deliver his decision promptly (b) adjudication rules should be construed as mandatory given the rationale for adjudication in its present rapid form (c) the adjudicator should use the most rapid means of delivery which were readily available to comply with this rationale (d) any delay in delivering the decision after the end of the period allowed should be minimal (e) if a decision had been reached before the end of the period allowed, it should be delivered within that period and (f) any failure to comply with the requirement of prompt and rapid delivery rendered the decision unenforceable and probably a nullity.
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