Epping Electrical Company Ltd v Briggs and Forrester (Plumbing Services) Ltd

The adjudicator's decision should not be enforced on the ground that whilst he reached his decision (by having finalised it) before the expiry of the extended period for him to do so, the defendant's agreement to the extension was conditional on him issuing it to the parties

Technology and Construction Court
His Honour Judge Richard Havery QC
19 January 2007
The time for the making of the decision was extended by the adjudicator by 14 days with the consent of the claimant. The adjudicator asked the parties for a further extension of seven days. The defendant agreed to a further seven day period for the adjudicator to "issue" his decision subject to confirmation from the claimant. The claimant notified the adjudicator of its consent to the further extension of time of seven days for reaching the decision. The adjudicator completed his decision on the last day of the further seven day period but initially declined to send it to the parties until he had been paid. The adjudicator sent his decision to the parties two days after the expiry of the further seven day extension period (having relented on the question of prior payment of his fees). The claimant brought court enforcement proceedings. The defendant contended that the decision was issued out of time, was a nullity and therefore should not be enforced.
Judge Havery agreed with the defendant and held that the adjudicator's decision was in effect a nullity. This was on the ground that it was "issued" (or delivered) to the parties after the expiry of the further extension period they had agreed in principle notwithstanding that he had "reached" his decision (in the sense of having finalised it) before the expiry of this period. Section 108(2)(c) of the Construction Act provided that the contract was to require the adjudicator to reach a decision within 28 days of referral or such longer period as was agreed by the parties after the dispute had been referred. Whilst there was a distinction between reaching a decision and its despatch or delivery to the parties, the time limits in section 108(2) for the adjudicator to reach his decision were mandatory (and not merely directory). Whilst it was common ground that the adjudicator had reached his decision by the extended date agreed to by the defendant, it was a condition of the defendant's agreement that the decision would be issued by that extended date (and it was not, as the claimant submitted, an unconditional agreement to extend the time limit by which the adjudicator had to reach his decision).