Stansell was a building contractor carrying out work in Union Street, Bristol. It engaged RSL as a subcontractor. The subcontract was based on the Standard Form of Domestic Sub-contract DOM/2 1981 edition (reprinted in 1998) incorporating amendments 1-8. Clause 38 contained adjudication provisions. A dispute arose in connection with the final account, and in particular a claim for an extension of time and a claim for loss and expense. The dispute was referred to adjudication. An adjudicator was appointed by the RICS. The adjudicator asked for the parties' agreement to appoint a planning expert. Both parties agreed. However, the defendant requested a copy of the letter of instruction to the planning expert, together with his response and copies of any report prepared by that expert. The preliminary advice from the expert was forwarded to the parties. The defendant did not consider that a response was required because the preliminary advice appeared to show that the claimant's position was not supported. The adjudicator then issued his decision. Paragraph 72 of that decision said that his decision was arrived at after considering the final report of the planning expert. He awarded the claimant 55 working days, and then proceeded to award the claimant a sum of money. The defendant did not pay. An application for summary judgment was made, together with an application in the alternative for an interim payment pursuant to Part 25.6 of the CPR.

Case details: 16 June 2003, TCC, HHJ Seymour QC

Stansell argued that the adjudicator's decision was unenforceable because of a breach of natural justice. It argued that the adjudicator had failed to comply with the basis upon which Stansell had agreed to the appointment of the planning expert, and also that the adjudicator had failed to provide Stansell with an opportunity to review the planning expert's final report. Finally, it argued that the adjudicator had wrongfully delegated his decision-making powers to the planning expert.

Reference

His Honour Judge Seymour QC considered that the main ground upon which Stansell could rely was the failure of an opportunity to comment upon the final report of the planning expert. Stansell had been given the opportunity to comment upon the interim advice, but had not done so because it appeared to be in their favour. However, the adjudicator's decision was based upon the final report of the planner, which had not been provided to the parties. On that basis Judge Seymour refused to enforce the decision.

In respect of the alternative application for an interim payment, he said that once the basis of the decision had been successfully attacked it could not then be said that other amounts could be "salvaged from the wreckage" of the adjudicator's decision. He recognised that in some instances it might be possible for one of the matters in dispute to be identified from a decision that could then be enforced without enforcing the rest of the decision. However, this was not one of those cases.

Postscript

This case is interesting because it demonstrates the dangers for an adjudicator of producing a decision based on a report that the parties have not had the opportunity to review and comment upon. The programming expert produced an interim report, and the parties had an opportunity to review it and comment upon it. However, the adjudicator made his decision based on a final report that the parties had not seen. One can sympathise with the adjudicator because no doubt he was trying to reach a reasoned decision within the limited timescale using the best available material. However, the message seems simple. The adjudicator should have based his decision on the interim report provided to the parties if there was not enough time available for the parties to comment on the final report. Alternatively, the final report should have been provided to the parties and their comments obtained before proceeding to the decision. It sounds simple enough, but trying to strike a balance within the short timescales of adjudication is far from straightforward.