Simons Construction Ltd v Aardvark Developments Ltd

The adjudicator's "draft" decision was not binding decision notwithstanding that there was no change in substance between it and the final decision but the final decision was binding notwithstanding that it was issued subsequent to the 28 days period prescribed by the contract
 
SIMONS CONSTRUCTION LTD v AARDVARK DEVELOPMENTS LTD

Technology and Construction Court
His Honour Judge Richard Seymour QC
29 October 2003
 
 
The adjudicator published a “draft” decision and a final decision which was unchanged as to its substantive text. The contractor contended that the draft decision was merely instead an invitation to debate the conclusions set out in it and that the final decision was not binding because it was published after more than 28 days.
 
Judge Seymour agreed that the “draft” decision was not a concluded (and binding) decision notwithstanding that there was no change in substance between it and the final decision. The fact that it was marked on its title page as being “for the parties’ comment” was indicative of it not being intended as necessarily final and indicated that each party was being afforded an opportunity to make any observations on the decision. The adjudicator did not indicate that any limitation was envisaged on the comments made by the parties’ representatives or that it was for practical purposes final or final subject only to “textual” corrections.
 
As a matter of the construction of the relevant contractual provisions of the contract, the JCT Arbitration Agreement and the Scheme for Construction Contracts, the final decision was binding notwithstanding that it was issued subsequent to the 28 days period for its issue prescribed by the contract (and under the Construction Act 1996). This was on the basis that an adjudicator’s failure to do so did not deprive him of jurisdiction to produce a binding decision thereafter. The effect of the provisions of the Act prescribing the terms as to adjudication to be implied into a construction contract was that such terms were relevant only to the parties to the contract and did not apply to the adjudicator. In addition the contractual provisions in the instant case were silent as to the consequences of the adjudicator failing to reach his decision within the prescribed 28 days period.
 
Advice Note
A “draft” decision will not be binding where the adjudicator invites comments on it without making it clear that such comments should be confined to “textual” corrections. However, a final decision will be binding notwithstanding that it is published after the mandatory period for publication unless the parties agree otherwise in their contract.
 
Download