Civil Engineering Reference
In-Depth Information
16.7.4 Registration of the decision
The Scheme provides that a party or the adjudicator can, if they so wish, register the
adjudicator's decision for execution in the topic of Council and Session. On request,
the other party must consent to such registration by subscribing the decision before
awitness.
On the face of it, this provision is better than its English counterpart which requires
the enforcing party to go to court in order to enforce the adjudicator's decision. Once
a decision has been registered in this way it does not require a court decree to con-
firm that the aggrieved party is entitled to enforce a decision. However, for some, this
paragraph does not go far enough. The non-complying party is required to sign the
decisionbeforeawitnesstorecordhisconsenttoregistration.Iftheotherpartyrefuses
to sign the award, the enforcing party will need to go to court. In practice, therefore,
this route to enforcement is seldom, if ever, used.
16.8 Adjudicator's fees and costs/expenses of the parties
Paragraph 25 of the Scheme provides:
1. The adjudicator shall be entitled to the payment of such reasonable amount as
he may determine by way of fees and expenses incurred by him and the parties
shall be jointly and severally liable to pay that amount to the adjudicator.
2. Without prejudice to the right of the adjudicator to effect recovery from any
partyinaccordancewithsub-paragraph(1),theadjudicatormaydeterminethe
apportionment between the parties of liability for the payment of his fees and
expenses and such determination shall be binding upon the parties unless any
effective contractual provision in terms of section 108A(2) of the Act applies.
Paragraph 25(1) effectively means that if one party refuses to pay their share of the
fees and expenses, the adjudicator can claim the whole amount from the other.
There have been a number of cases in which payment of the adjudicator's fees have
been challenged.
In
Linnett
v.
Halliwells LLP
(2009), Halliwells refused to pay the adjudicator arguing
that they had objected to the adjudicator's jurisdiction and maintained their juris-
dictional challenge throughout the adjudication. Halliwells claimed that as they had
notagreedtotheappointmentoftheadjudicator,theydidnotagreetopayforhis
work in the adjudication. Appointment as adjudicator was a contract and there was
no concluded contract between Halliwells and the adjudicator. The judge agreed that
adjudication is a contractual arrangement and the ability of an adjudicator to obtain
fees depends on there being a contractual right to payment under the adjudicator's
agreement with one or both of the parties. Halliwells' response made it clear that
they were objecting to jurisdiction and would not agree the terms. On that basis no
