Civil Engineering Reference
In-Depth Information
and
As for time spent, challenges in other areas of professional fees are usually not on
the basis that the hours claimed were not worked but that the particular task took
too long or that unnecessary work was done. But again, leeway needs to be afforded
here because on a tight schedule different adjudicators may approach their task
in different way, or order their work differently. And as for allegedly unnecessary
work, it is important to bear in mind paragraph 20 of the Scheme. The adjudi-
cator is entitled to take into account '
matters under the contract which he
considers are necessarily connected with the dispute.' Given the principles set out
above, the party to an adjudication which is considering a fees challenge will need
to give careful consideration as to whether there is any realistic basis for disput-
ing the fees claimed. It is to be expected that that in the usual run of cases there
will not.
…
This case is a clear discouragement to parties seeking to challenge the amount charged
by an adjudicator.
Someadjudicatorsattemptedtoprotectthemselvesagainstnon-paymentbyinclud-
ing in their terms of engagement a provision that they will not issue their decision
until payment of their fees is made. However, the RICS Guidance Notes for Surveyors
Acting as Adjudicators forbids adjudicators holding on to their decisions until their
fees are paid unless they have the agreement of the parties. Further, the case law on
the time limits for reaching and communicating decisions also makes this unworkable
(see Section 16.6.2).
As noted above, paragraph 25(2) of the Scheme provides that an adjudicator may
by direction determine the apportionment between the parties of liability for his fees
and expenses. See also Secondary Option clause W2.3(8) of the NEC3 which provides
that the Adjudicator may in his decision allocate his fees and expenses between the
Parties.
There is, however, no express provision in the statutory framework allowing an
adjudicator to include in his decision an award in relation to the costs or expenses
which the parties have themselves incurred in relation to the adjudication.
There had been conflicting authority on this point, see
John Cothliff Ltd
v
.Allen
Build (North West) Ltd
(1999);
Northern Developments (Cumbria) Ltd
v.
J&JNichol
(2000);
Bridgeway Construction Ltd
v
. Tolent Construction Ltd
(2000);
Yuanda (UK)
Co.Ltd
v.
WWGearConstructionLtd
(2010);and
ProileProjectsLtd
v.
Elmwood(Glas-
gow) Ltd
(2011). A degree of clarity was provided in this area by the introduction of
section 108A to the 1996 Act by the 2009 Act. Section 108A provides that contrac-
tual provisions relating to the apportionment of liability for adjudication costs and
expenses are ineffective unless:
1. Parties include a provision in the construction contract in writing allowing the
adjudicator to allocate his fees and expenses between the parties; or
2. Parties include a provision in writing after the giving of notice of intention to
refer the dispute to adjudication.
