A notice of adjudication was issued on 10 June 2004. On 6 July, the claimants served its response. On 7 July the defendant accepted that the adjudicator did not have jurisdiction. The adjudication was discontinued and the defendant paid the adjudicator’s account.

The claimant then asked the adjudicator for a decision that the defendant should pay the claimant’s costs. Clause 9.2 of the RIBA in addition to the engagement for the appointment of an architect (CE/99) that was applicable to the contract between the parties incorporated the model adjudication procedure published by the Construction Industry Council. Clause 29 had been amended allowing the adjudicator discretion to decide that one party may pay the other’s legal fees and expenses “as part of his decision”. On 12 November, the adjudicator issued a decision that the claimant’s costs were £87,131.04 and that the adjudicator’s further fee in assessing costs was £14,643.44 and that the defendant should pay those amounts.

The claimant relied on Amended Clause 29, and on the implied term that the adjudicator should have power to order the payment of costs.

Was the defendant was liable to pay the costs awarded by the adjudicator?