Sometimes the poor old adjudicator doesn't get paid, and then has a dispute of his own and has to sue for his fees. He goes to the county court and doffs his cap at a judge and laughs at his jokes. Chris Smart is an adjudicator who ended up in court in a dispute over fees. The builder had been ordered by the architect adjudicator not only to pay the other party to the adjudication, but to pay £1561 in adjudicator's fees. The builder, WH Tolly, quarrelled about the size of the fee and the hours claimed. And, by Jove, the district judge saw it the builder's way. He cut it to £400, saying that a reasonably competent solicitor would have charged about that.
I bet Chris Smart hurled his adjudicator's cap on the floor at that. Off he went to his solicitors, who recommended an appeal. It was heard in Bristol County Court (Stubbs Rich Architects vs WH Tolly & Son Ltd; case number 83 in the adjudication series). This judge decided that the first court was wrong to compare the work of a solicitor with that of an adjudicator; it was not like for like. The adjudicator acts as both investigator and judge. In any case, it wasn't for the court to substitute its own view of what constitutes reasonable hours. Instead, there had to be "very clear evidence that the amount is more than the court would have considered appropriate if it had been approaching the matter afresh". And since the builder provided no expert evidence to criticise the fees, the adjudicator got the whole lot.
There was another more interesting reason for rejecting the builder's complaint. The standard form JCT contract containing the adjudication clause quite properly included the Construction Act's indemnity for the adjudicator. He "is not liable for anything done or omitted in the discharge … of his function … unless done in bad faith". So, said the judge, "fees may only be challenged if, and only if, the adjudicator has acted in bad faith". Nobody suggested that Mr Smart had done so. In which case, the only recourse would be to allege that the fees were so excessive as to amount to "misconduct"; that is, if the adjudicator has either put his own interests before those of the parties or misconceived the basis on which he should carry out the calculation of his fees.
An adjudicator is entitled to fees, whether the parties agree or disagree with his decision
The judge appears to be saying that the indemnity only allows an attack on fees when they indicate an overcharge sufficiently substantial as to require the court to prevent an injustice. If that's right, high charges remain untouched and payable.
The second "fees case" is Paul Jenson vs Staveley Industries Plc (number 84 in the series). Mr Jenson is a very experienced adjudicator. He made a decision that he had no jurisdiction because the contract did not satisfy the rules for adjudication. He stopped – then sent his bill. Staveley said he was wrong in his decision, so it wouldn't pay his fees. Mr Jenson sued. The county court judge said it wasn't the court's business whether an adjudicator was wrong or right. "The mere fact of alleged wrongful determination cannot be construed as default or misconduct." An adjudicator is entitled to fees, whether the parties agree or disagree with his decision.
The problem at the heart of fighting for fees is that the Construction Act did not provide a statutory right for the adjudicator to hold on to his decision until his fee was paid. The Arbitration Act does so. No pay, no award.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.