YCMS Ltd v Grabiner
The circumstances in which an adjudicator can revise his decision (the "slip rule") derived from caselaw
31 January, 2009
YCMS LTD V GRABINER
Technology and Construction Court
31 January 2009
31 January 2009
Akenhead J in this case had to decide whether an amendment made by the adjudicator to his decision was valid. In doing so the judge summarised the cases into the principles below.
As to the requirement for there to be an implied contractual term permitting revisions to a decision (i) An adjudicator could only make revise a decision if it was an implied term of the contract by which adjudication was permitted to take place that permitted such a revision (ii) It did not follow that if it the adjudication was a statutory arbitration under the Construction Act (in the absence of a contractual adjudication clause), such an implication could be said to arise statutorily and (iii) If there was such an implied term, it could and would only relate to "patent errors", which could include the wrong transposition of names, failing to give credit for sums found to have been paid or simple arithmetical errors. As to the adjudicator having second thoughts and intentions (i) The slip rule could not be used to enable an adjudicator who had had second thoughts and intentions to correct an award and (ii) This meant that such a correction would not be permitted where the adjudicator had second thoughts if, for example, he decided that the law was that there is no equitable right of set off but then changed his mind having read some cases feeling that he had got that wrong. As to the timing of the revision (i) The time for revising a decision by way of the slip rule would be what was reasonable in all the circumstances (ii) For example in Bloor Construction v Bowmer and Kirkland (2000) the adjudicator's revision of his decision within several hours and before the time for issuing a decision had been given was held to be reasonable (iii) It would, however, be an exceptional and rare case in which the revision could be made more than a few days after the decision because, unlike a court judgment or an arbitration award, a principal purpose of the Construction Act was to facilitate cash flow and (iv) If an adjudicator was entitled to revise his decision say 21 or 28 days after its issue, that would necessarily slow down and interfere with the speedy enforcement of adjudicators' decisions and would in broad terms be contrary to the policy of the Construction Act.