John Roberts Architects Ltd v Parkcare Homes Ltd (Part I)

The adjudicator's direction that the client should pay the architect's costs of the adjudication should not be enforced by the court where the client abandoned the adjudication proceedings it brought against the architect without the adjudicator making a decision
Technology and Construction Court
His Honour Judge Richard Havery QC
25 July 2005
The client began adjudication proceedings against the architect which the client abandoned without the adjudicator having made a decision. The adjudicator directed that the client should pay the architect’s costs of the adjudication. Clause 29 of the adjudication agreement, which was a bespoke provision inserted by the parties into the Model Adjudication Procedures published by the Construction Industry Council which governed the adjudication, provided that the adjudicator in his discretion could direct the payment of legal costs and expenses of one party by another as part of his decision.
Judge Havery held that the court should not enforce the adjudicator’s direction. The relevant background in relation to the Scheme for Construction Contracts was that: (1) The Scheme operated as implied terms of any construction contract which did not contain express terms providing for adjudication (2) The Scheme did not provide for the recovery of the costs incurred by either party in prosecuting or defending a claim, thus inferring that Parliament did not think it essential for any adjudication agreement to provide for the recovery of costs and (3) It was not a startling conclusion that an adjudication agreement should contain a provision which operated to enable a party to recover its costs in limited circumstances, such as where the matter went to a decision of the adjudicator on the dispute referred to him.
The use by the parties of clause 29 against the above background would reasonably have been understood to mean the meaning of the words of that clause on the basis that the meaning of the adjudication agreement appeared from the plain meaning of the words in their context. The meaning of clause 29 was therefore clear and was that: (1) The adjudicator’s decision was his decision on the matters set out in clause 20 of the Model Adjudication Procedures, namely the matters set out in the notice to refer together with any other matters which the parties and the adjudicator agreed were within the scope of the adjudication (2) It was only as part of his decision that the adjudicator could direct the payment of legal costs and (3) The adjudicator did not make a decision on the matters set out in the notice to refer and the effect of clause 29 was that he therefore had no jurisdiction to decide the question of liability for costs.