The provisions of the Standard Form of Contract stated that if an adjudicator failed to produce a decision within the time provided then the referring party could instruct another adjudicator and the original adjudicator must resign.
Reliance was placed upon Bloor Construction (UK) Limited vs Bowmer & Kirkland (London) Limited 2000 TCC 764. That case primarily concerned the rectification of those errors, but the adjudicator in that case had reached his decision on the last day provided for under the agreement but had not published it for a further two days.
Judge Toulmin said that the decision must be communicated immediately once it had been reached, and that a decision contained two elements: first, the reaching of that decision, and second the sending of that decision to the parties.
Lord Wheatley decided that the adjudicator had not reached her decision within the time limits provided for either by the Act or by the Standard Contract. While the Act is silent on the question of communication of the decision, there is a contemporaneous duty to communicate the decision to the interested parties once it has been reached. Otherwise the purpose of the legislation would be meaningless. Rendering a decision "forthwith" means immediately by fax or similar and not by first class post which might be regarded as "archaic". Further, the Adjudicator was not entitled to delay communication of the decision until her fees had been paid because nothing in the Scheme or the contract provided for that possibility. However, whilst the failure to comply with the timing was a serious matter it did not render the decision a nullity.
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An ongoing debate has been the ability of the adjudicator to refuse to issue his or her decision until payment of the adjudicator's fee has been received. This case confirms that a decision for the purposes of the HGCRA has not been validly made until it has been reached and sent to the parties. It seems that an adjudicator cannot delay the issuing of a decision pending payment of fees, although a failure to issue the decision within 28 days will not automatically render the decision void. However, the effect of the decision could be overtaken by other events, such as the issuing of another notice after the 28 day deadline in respect of the same dispute, which might render the first decision void.