UK Adjudicators February 2022 Newsletter

WWW.UKADJUDICATORS.CO.UK
FEBRUARY 2022 NEWSLETTER
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EDITORS COMMENTS
The SCL London Annual lunch took place on the
11 February 2022 at the Grosvenor House
Hotel on Park Lane. UK Adjduciators hosted a
table and also a pre-lunch a bar for some 30
guests. This was the first big construction law
event of the year and has passed off without
being a super spreader event., as such we are
looking forward to organising some more in
person events later in the year.
Our usual spriing conference in Edinburgh
won’t be taking place this year as we have
decided to fully support the Dispute Resolution
Board Foundation’s (DRBF) International
Conference which is taking in London from the
7 to 9 May 2022. I would encourage you to
attend; there will be some excellent speakers
and also practrical workshops and training for
those interested in becoming dispute board
members.
The Court of appeal has just decided the case
of Steve Ward Services (UK) Ltd v Davies &
Davies Associates Ltd and we have attached
the judgement at first instance and the Court
of Appeal judgement to the newsletter and
also discuss aspects of this case in the
newsletter. I’m sure many adjudicators will be
relieved that Lord justice Coulson was able to
sit on this appeal and for the guidance
provided in his judgement.
There will be a series of three events in
Manchester during May , June and July which
have been kindly organsied by Matt Drake.
As always we welcome news, articles, and case
commentaries for publication in the
newsletter.
Sean Gibbs LLB(Hons) LLM MICE FCIOB FRICS
FCIARB, is the Chief Executive Officer of
Hanscomb Intercontinental and is available to
sit as an arbitrator, adjudicator, mediator,
quantum expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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DISPUTE BOARD MEMBER
ACCREDITATION
FIDIC have successfully accredited dispute
board members on their new assessment
courses. The course though does not offer
training; it assesses qualified dispute
adjudicators who offer dispute avoidance
and/or dispute adjudication services to the
infrastructure industry.
Candidates are tested on:
• Knowledge of FIDIC Contracts,
including all main FIDIC publications
providing for Dispute Boards or
Adjudication, the FIDIC Golden
Principles and also multi-lateral
development banks specific
requirements
• Contract/construction law principles
under common and civil law
jurisdictions
• Evidence law and procedures
• Dispute Board (DB) good practice and
procedures
• Ethical standards
• Technical matters, delay analysis and
the evaluation of quantum for both
variations and time related costs and
basic financial knowledge of VAT, bank
guarantees etc.
• Decision making and Award writing
skills
• Ability to manage and control a
meeting, hearing or site visit
• Time Management
• Interpersonal skills
FIDIC Contracts for the assessments include:
1. Conditions of Contract for
Construction for Building and
Engineering Works Designed by the
Employer (Red Book), first edition,
1999
2. Conditions of Contract for Plant and
Design Build for Electrical and
Mechanical Plant, and for Building and
Contractor (Yellow Book), first edition,
1999
EPC/Turnkey Projects (Silver Book),
first edition, 1999
Construction for Building and
Employer, MDB Harmonised Edition,
June 2010.
Construction (Red Book), second
edition, 2017

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6. Conditions of Contract for Plant and
Design Build (Yellow Book), second
edition, 2017
EPC/Turnkey Projects (Silver Book),
second edition, 2017
Underground Works (Emerald Book),
first edition, 2019
9. FIDIC Golden Principles (2019), first
edition.
10. The Short Form of Contract (Green
Book) first edition, 1999
11. Conditions of Contract for Design,
Build and Operate Project (Gold Book)
first edition, 2008
12. Conditions of Subcontract for
Construction For building and
engineering works designed by the
Employer, first edition, 2011
13. Form of Contract for Dredging and
Reclamation Works, second edition,
2016
14. Client/Consultant Model Services
Agreement (White Book), fifth edition,
2017
15. Sub-consultancy agreement, second
edition, 2017
16. Conditions of Subcontract for Plant
and Design Build, first edition, 2019
A significant number of Dispute Board Panel
Members on the UK Adjudicators
international panel have undertaken this
accreditation and are also listed on the FIDIC
President’s List of Adjudicators and
Mediators.
https://www.ukadjudicators.co.uk/dispute-
board
To find out more about accreditation and
assessment do look at the website:
https://fcl.fidic.org/our-
programmes/adjudicators/
To find out more about the FIDIC President’s
List of Adjudicators and Mediators do look at
the website:
https://fidic.org/president-list

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IS AN ADJUDICATION DECISION
ENFORCEABLE EVEN WHEN IT IS
INCORRECT IN SOUTH AFRICA?
Is an Adjudication decision enforceable even
when it is incorrect?
The South Africa Supreme Court of Appeal has
recently shed light on whether an adjudicator’s
award is binding on both parties in the case of
Framatome v Eskom Holdings SOC Ltd ((355 of
2021) [2021] ZASCA 132 (01 October 2021)).
The Case
The contract between Eskom and Framatome
is that they used a NEC 3 contract for the
replacement of steam generators at Koeberg
Nuclear Power Station. This contract, being a
NEC contract, provided for adjudication as the
first method of dispute resolution between the
parties. There was a despite that arose relating
to a compensation event notified by the
project manager of Eskom. Framatome won
this dispute when it came to adjudication and
Eskom ignored the adjudicator’s award.
Another dispute went to adjudication which
dealt with the assessment of the
compensation event of the original dispute.
Eskom refused to provide an evaluation of the
compensation event and the adjudicator
concluded that Eskom had failed to make a full
assessment in due time as required by the
original decision. Framatome’s proposed
quotation was concluded to be accepted in
terms of the provisions of the contract.

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Eskom notified the adjudicator of its
dissatisfaction with this decision and
Framatome tried enforcing the various
decisions in the High Court.
The High Court found in favour of Eskom that
the adjudicator had acted outside his terms of
reference and that he exceeded his
jurisdiction. He had decided on issues not
referred to him. Framatome appealed to the
Supreme Court of Appeal.
Court of Appeal Decision
The court asked the question of whether or not
the adjudicator confined himself to a decision
of the issues that were referred to him by the
parties. If he did so, then the parties were
bound by his decision.
The court held that:
a) The adjudicator did confine himself to the
issues referred. At no point did he depart from
the real dispute between Eskom and
Framatome.
b) Only an arbitral tribunal could revise the
adjudicator’s decision – because an arbitral
tribunal had not been used, the decision was
binding on both parties.
c) Eskom was ordered to make full payment
to Framatome.
The court remained in line with Hudson’s
Building and Engineering Contracts, that
‘it is only in rare circumstances that the court
will interfere with the decision of an
Adjudicator…’
The usual position that an Adjudicator’s
decision can only be interfered with where
there the adjudicator has no jurisdiction,
where there is really bias, or the appearance of
bias still applies.
A party should not agree to refer a dispute to
adjudication assuming that if the adjudicator
decides against them, they can ignore the
decision. The courts still will promote the idea
that an Adjudicator’s decision will be enforced
in the majority of cases.
https://lawlibrary.org.za/za/judgment/supre
me-court-appeal-south-africa/2021/132
George William Gibbs – LLB (Hons) LPC
Consultant, Hanscomb Intercontinental Ltd

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BRAVEJOIN COMPANY LTD V
PROSPERITY MOSELEY STREET LTD
[2021] EWHC 3598 (TCC) (13
DECEMBER 2021)
INDEMINITY COSTS
The TCC has once again firmly shown its
support for adjudication by awarding
indemnity costs against the defendant that
tried to resist the enforcement of an
adjudicator’s decision.
The case itself isn’t very interesting and can be
summarised briefly; the Technology and
Construction Court (TCC) rejected an argument
that there was no crystallised dispute capable
of reference to adjudication, in a case where
the defendant argued that there was no
contract between it and the claimant. The
adjudication concerned the claimant’s right to
payment for construction works, and the TCC
considered that the defendant’s ‘no contract’
argument was a denial of liability to make
payment, therefore indicating the existence of
a crystallised dispute.
The TCC’s robust approach to enforcing
adjudicator’s decisions is the reason
adjudication has worked so well in the
United Kingdom and must be applauded.
The sanction of indemnity costs will deter
most parties from raising spurious
challenges to a decision.
BILTON & JOHNSON (BUILDING) CO
LTD V THREE RIVERS PROPERTY
INVESTMENTS LT [2022] EWHC 53
(TCC) (14 JANUARY 2022)
The Technology and Construction Court (TCC)
dismissed two challenges to the enforceability
of an adjudicator’s decision, based on alleged
breaches of natural justice. It found that the
adjudicator had been entitled to reach a view
on which contractual terms applied to the
dispute without adopting the precise
arguments made by either party, and that he
had not failed to determine a rectification
defence raised by the employer.
JOHN GRAHAM CONSTRUCTION
LTD V TECNICAS REUNIDAS UK LTD
[2022] EWHC 155 (TCC) (27
JANUARY 2022)
Chris Ennis was the fourth adjudicator in a
series of adjudications and had to determine
the true value of an interim application for
payment. The sum awarded included
£355,000-odd that the defendant disputed
was due. It maintained it could contra charge
for a replacement sub-contractor to complete
the claimant's works and paid only part of the
adjudicator's decision having validly
terminated. The defendant wouldn’t comply
with the decisions and the claimant

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commenced proceedings to recover the
balance.
In enforcement the defendant argued that the
adjudicator had acted in excess of or outside
his jurisdiction. It said it had not waived its
right to raise this jurisdictional challenge,
arguing that the jurisdictional error was so
fundamental and not capable of being waived,
and it did not have actual or constructive
knowledge of the error until the adjudicator's
decision was issued.
The jurisdictional error was said to arise
because, in a decision dated March 2019, the
first adjudicator determined the scope of the
sub-contract works and the claimant
subsequently refused to undertake works
outside that scope. That matter was referred
to arbitration and in the first award (dated
June 2020), the adjudicator's decision on scope
was overruled. The fourth adjudicator agreed
that the parties were required to comply with
the first adjudicator's decision until June 2020,
and that legitimised the claimant's refusal to
carry out works and meant the defendant
could not levy the contra charge. The
defendant said this showed the fourth
adjudicator refused to give effect to the
arbitration award and gave continuing effect to
the first adjudicator's decision.
The judge disagreed with the defendant and
enforced the balance of the adjudicator's
decision. He held the fourth adjudicator
expressly acknowledged that he was bound by
the arbitration award. Further, he did not
answer the wrong question. He decided the
defendant could not levy the contra charge
because the loss flowed from complying with
the first adjudicator's decision, not the
claimant's breach of contract. It was
immaterial whether that was right or wrong.
Obiter, he held that the defendant did not have
actual or constructive knowledge of this
jurisdictional objection prior to the
adjudicator's decision, so it had not waived its
rights to challenge on this basis.
Although the judgment neatly summarises the
principles of adjudication enforcement, the
really interesting aspect is the interplay
between adjudicators' decisions (which are
temporarily binding) and arbitration awards
(which have finality), and how subsequent
adjudicators have to tread carefully between
the two.

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STEVE WARD SERVICES (UK) LTD V
DAVIES & DAVIES ASSOCIATES LTD
[2022] EWCA CIV 153 (14 FEBRUARY
2022)
On appeal from
DAVIES & DAVIES ASSOCIATES LTD
V STEVE WARD SERVICES (UK) LTD
[2021] EWHC 1337 (TCC) (19 MAY
2021)
At first instance Roger ter Haar QC gave
summary judgment to enforce payment of an
adjudicator's fee arising from an adjudication
in which the adjudicator resigned prior to
issuing a decision.
The adjudicator was appointed under the CIC's
Low Value Disputes Model Adjudication
Procedure (LVD MAP) and the Scheme for
Construction Contracts (England and Wales)
Regulations 1998 (SI 1998/649) applied, but
the adjudicator also provided his terms and
conditions of appointment. The terms required
payment even if no decision was issued. Before
issuing a decision, the adjudicator concluded
he lacked jurisdiction because the adjudication
had been started against the wrong
responding party. He resigned and claimed his
fees from the referring party who became the
defendant in the court hearing. The defendant
refused to pay so the adjudicator sued for his
fees and applied for summary judgment, which
the court granted. Roger ter Haar QC made a
number of interesting findings. While the
adjudicator could take the initiative in
ascertaining the facts and law (including who
the parties to the contract were), in
circumstances where neither party had raised
a jurisdictional point, "it would have been
wiser" for the adjudicator to raise the matter
with them. He had relied on the power in
paragraph 13 of the Scheme, but this was
outside the ambit of that power and his
reasoning was erroneous. That said, he acted
in accordance with what he considered was his
duty to the parties and there was no breach of
his terms of engagement, since paragraph 9(1)
of the Scheme allows the adjudicator to resign
at any time.
Further, the adjudicator could rely on his terms
and conditions, there was no bad faith and the
clause satisfied the Unfair Contract Terms Act
1977 (UCTA) reasonableness test.
The Defendant didn’t like the decision and
appealed, the appeal being heard by three
judges, one of which was Lord Justice Coulson.
Lord Justice Coulson delivered the judgement
of the court and in the judgement identified six
issued that the court needed to answer.

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a) Issue 1: Was there a jurisdictional issue in
the adjudication?
There a real jurisdictional issue in this case
which Mr Davies was obliged to address.
b) Issue 2: Was Mr Davies entitled to decline
jurisdiction and resign in consequence?
The adjudicator was entitled to decline
jurisdiction pursuant to paragraph 13 of the
Scheme, he had reasonable cause to resign in
all the circumstances of this case.
c) Issue 3: Subject to bad faith, was Mr Davies
entitled to be paid for the work done prior to
his resignation ?
The adjudicator was entitled to be paid for the
work done prior to resignation.
d) Issue 4: Was Mr Davies guilty of bad faith?
The adjudicator was not guilty of
default/misconduct, much less bad faith.
e) Issue 5: Were Mr Davies' own terms of
appointment contrary to UCTA?
The adjudicators terms were not contrary to
UCTA, UCTA had no application to the present
case.
f) Issue 6: Should this court interfere with the
judge's costs order?
The court shouldn’t interfere with the judge's
costs order.
The adjudicator charged an hourly rate of
£325.00 plus VAT for his time on the
adjudication and through the various court
hearings. The court had no objection to this
rate and awarded costs based on the
application of this rate. The adjudicator
confirmed this rate in his terms and conditions,
the court approved the adjudicator doing this
and it would be advisable for others sitting as
adjudicators to always do this.
The wording was :
Basis of Charge
Time related for hours expended working or
travelling in connection with the Adjudication
including all time up to settlement of any Fee
Invoice, which, for the avoidance of doubt, may
include any time including Court time, spent
securing payment of any fees, expenses and
disbursements due.

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Aspects of the law were restated in the
judgement which parties, party
representatives as well as adjudicators should
take note of.
‘An adjudicator has no jurisdiction if it is
arguable that there is no contract at all (see
Dacy Building Services v IDM Properties
[2017] BLR 114; M Hart Construction v Ideal
Response Group (2018) 117 Con LR 228), or
where there is a non-qualifying construction
contract: see The Project Consultancy Group
v The Trustees of the Gray Trust [1999] BLR
377.
If a defendant can demonstrate a reasonably
arguable case that either he or the claimant
were not a party to the construction
contract, the adjudicator has no jurisdiction
to make any decision, and it will not be
enforced against him: see Thomas-Frederic’s
(Construction) Limited v Keith Wilson [2003]
EWCA Civ 1494; [2004] BLR 23. There have
been a number of subsequent cases in which
an adjudicator’s decision was not enforced
because of doubts as to the proper parties to
the contract: for a case where the claimant
was arguably not a party to the construction
contract so the decision was not enforced,
see ROK Build Limited v Harris Wolf
Developments Co. Limited [2006] EWHC
3573 (TCC)); for a case where the defendant
was arguably not a party to the construction
contract so the decision was not enforced,
see Estor Limited v Multifit (UK) Limited
[2009] EWHC 2108 (TCC); [2009] 126 Con LR
40.)
As this court acknowledged in Thomas-
Frederic’s, a defendant who has agreed to be
bound by the adjudicator’s decision will not
be able to resist enforcement, even if that
defendant was not a party to the contract.
Whether or not the defendant has agreed
will depend on the evidence, in particular as
to whether the defendant had reserved its
position in respect of jurisdiction (see
Thomas-Frederic’s and Brims v A2M [2013]
EWHC 3262 (TCC) at [33]), or had otherwise
waived any such objection (see Aedifice
Partnership Ltd v Shah [2010] EWHC 2106
(TCC); [2010] CILL 2905 at paragraph 21(e)).
If two parties have unequivocally agreed to
adjudication, even if one of them is not a
party to the construction contract, then they
have agreed to ad-hoc adjudication and the
resulting decision can be enforced: see, by
way of example, the decision in Nordot
Engineering Services Ltd v Siemens PLC
(SF00901 TCC16/00) dated 14 April 2000;
CILL September 2001, approved in Thomas-
Frederic’s.
Under paragraph 13 of the Scheme, the
adjudicator has to investigate the matters
“necessary to determine the dispute”. If an

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adjudicator considers that it is necessary to
work out if he or she has the jurisdiction to
determine the dispute in the first place, then
they are duty bound to consider and
determine that issue. That in turn means
that they should raise that issue with the
parties before coming to their own
conclusion. In Primus Build Ltd v Pompey
Centre Ltd and another [2009] EWHC 1487
(TCC); [2009] BLR 437, the adjudicator
spotted a point of significance (in that case,
various figures in one party’s accounts,
rather than a potentially fatal jurisdiction
issue) which neither party had addressed.
Although it was not disputed that the
adjudicator was entitled to consider those
figures, the court found that fairness
required him to raise the point with the
parties before reaching a decision based on
those figures. In my view, Paragraph 13 of
the Scheme gave Mr Davies the express
power to do just that: to consider and raise
with the parties a point which they had not
raised but which he thought was important.
There is no binding authority on an
adjudicator’s entitlement to fees when he or
she resigns. For what it is worth, by analogy
with paragraph 9(4) of the Scheme, I have
previously suggested (at paragraph 10-27 of
the 4th edition of Coulson on Construction
Adjudication) that there may well be such an
entitlement. In Paul Jensen Ltd v Staveley
Industries PLC, 27 September 2001
(unreported but cited in that paragraph),
District Judge Donnelly said that it did not
matter whether the adjudicator had been right
or wrong to resign because of a jurisdiction
issue and that, because there was no
suggestion of default or misconduct on the
adjudicator’s part, the adjudicator was entitled
to the fees incurred prior to his resignation.
In the recent Supreme Court decision on the
topic, it was made plain that, depending on
the circumstances of the case, an act of bad
faith will usually require some measure of
dishonesty or unconscionability: see
Pakistan International Airline Corp v Times
Travel (UK) Ltd [2021] UKSC 40; [2021] 3
W.L.R. 727.’
The judgement at first instance in the TCC and
on appeal to the Court of Appeal accompany
this newsletter and I would encourage you to
read them.

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ADJDUCIATORS LONDON 2021
ADJDUCIATION & ARBITRATION
CONFERENCE
The conference was another great success with
attendess from across the globe. If you want to
view the six panels videos or read the
conference pack please go to the UK
Adjudicators website.
https://www.ukadjudicators.co.uk/conferenc
es

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TCC COURT JUDGEMENTS
January
• Atos Services UK Ltd v Secretary of
State for Business, Energy, and
Industrial Strategy & Anor [2022]
EWHC 42 (TCC) (17 January 2022)
• Avantage (Cheshire) Ltd & Ors v GB
Building Solutions Ltd & Ors [2022]
• Bilton & Johnson (Building) Co Ltd v
Three Rivers Property Investments
Lt [2022] EWHC 53 (TCC) (14 January
2022)
• Cambridgeshire County Council v Bam
Nuttall Ltd & Ors [2022] EWHC 275
(TCC) (18 January 2022)
• Good Law Project Ltd & Anor, R (On
the Application Of) v The Secretary of
State for Health and Social Care [2022]
• Hirst & Anor v Dunbar & Ors [2022]
• John Graham Construction Ltd v
Tecnicas Reunidas UK Ltd [2022]
• Lumley v (1) Foster & Co Group Ltd &
Ors [2022] EWHC 54 (TCC) (14 January
2022)
• Qatar Airways Group QCSC v
Airbus [2022] EWHC 285 (TCC) (20
January 2022)
• The Sky's the Limit Transformations
Ltd v Mirza [2022] EWHC 29 (TCC) (10
January 2022)
• Transparently Ltd v Growth Capital
Ventures Ltd [2022] EWHC 144
(TCC) (26 January 2022)
February
• Naylor & Ors v Roamquest Ltd &
Anor [2022] EWHC 277 (TCC) (02
February 2022)
• Struthers & Anor v Davies (t/a Alastair
Davies Building) & Anor [2022] EWHC
333 (TCC) (18 February 2022)

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The DRBF International Conference will be
taking place in London in 6 – 8 May 2022.
Leading speakers, lawyers, experts, clients,
dispute board members, dispute board users
and contractors will be attending.
https://www.drb.org/
FORTHCOMING EVENTS
Monday, February 28,
2022 - 1:00 PM
How Our Cities Survive Earthquakes: An
introduction to seismic engineering for the
construction law professional
Online
Chair: Sarah Williams, Keating
Chambers
Speaker(s): Dr Troy Morgan, Exponent
For more info
Tuesday, March 1, 2022 - 6:30
PM
The Building Safety Bill: what is it? where is it at?
who is impacted? will it deliver?
London
Chair: Jonathan Pawlowski
Moderator: Zoe de Courcy,
Infrastructure Sector Partner
Speaker(s): Panellists - Katherine
Metcalfe, Legal Director at Pinsent
Masons specialising in advice on health
and safety, fire safety and environmental
matters; Charmaine McQueen-Prince, In
House Counsel, HomeGround
Management Ltd ;Pete Wise, Technical

15 | P a g e
Director of Fire Engineering, Part B
specialising in fire engineering, fire risk
management and operational firefighting
Venue: National Liberal Club and Online
For more info
Wednesday, March 2,
2022 - 9:00 AM
Third party funding in 2022: the lawyer, the
arbitrator and the funder's view
Online
Moderator: Michael Dillon - Horizons &
Co
Speaker(s): Joe Durkin - LCM Finance,
Marion Smith QC - 39 Essex Chambers,
Hamish Lal - Akin Gump & Colin
Monaghan - Mason Hayes Curran
For more info
Friday, March 4, 2022 - 8:15 AM
The Society of Construction Law Annual Spring
Conference 2022
Leeds
Speaker(s): Mrs Justice O'Farrell DBE,
Ryan Turner - Atkin Chambers, John
Riches - Henry Cooper Consultants Ltd,
Tom Owen - Keating Chambers, Michael
Levenstein and David Pliener -
Gatehouse Chambers
Venue: The Royal Armouries, Armouries
Drive, Leeds LS10 1LT
Full details in this flyer
For more info
Monday, April 4, 2022 - 9:00 AM
The Use of Technology in International
Construction Arbitrations
Online
Moderator: Sara Koleilat-Aranjo - Al
Tamimi & Company
Speaker(s): Ben Giaretta - Fox
Williams, Dr Yazan D Haddadin - Seraj
Law & Mariana Verdes - Law Library
For more info
Tuesday, April 5, 2022 - 6:30
PM
Memorial Talk John Sims and Ray Turner
London
Speaker(s): Rowan Planterose and
John Tackaberry QC
For more info
Tuesday, May 10, 2022 - 6:30
PM
Contract Damages for Defective Construction
Work: An Unsolved Puzzle?
London
Chair: Jonathan Cope
Speaker(s): Dr Matthew Bell, Associate
Professor and Co-Director of Studies for
Construction Law, University of
Melbourne
For more info

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THE SOCIETY OF CONSTRUCTION
LAW NORTH AMERICA
The Society of Construction Law North America
(SCL-NA) is hosting their annual conference
from the 6th to the 8th of July 2022 at the
beautiful Omni Interlocken Resort in
Broomfield, Colorado just 18 miles northwest
of downtown Denver.
https://scl-na-conference.org/
SCL INTERNATIONAL CONFERENCE
2023
The Society of Construction Law 10th
International Conference will be hosted by SCL
Turkey in Istanbul in 2023.
Wednesday, March 2, 2022
Third party funding in 2022: the lawyer, the
arbitrator and the funder's view
Joint SCL & the Adjudication Society
online event
Thursday, May 26, 2022
Adjudication Case Law Update No.4
This is the fourth lecture in
which practitioners and adjudicators
will provide an all-you-need-to-know
update on recently decided
adjudication case law.
Monday, June 27, 2022
Adjudication Society Golf Day 2022
The second Adjudication Society Golf
Day is open to members of the
Adjudication Society only.

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Peer discussion roundtables: contractor
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Case No: HT-2021-000006
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
[2021] EWHC 1337 (TCC)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
Date: Wednesday 19th
May 2021
Before :
MR ROGER TER HAAR QC
Sitting as a Deputy High Court Judge
- - - - - - - - - - - - - - - - - - - - -
Between:
DAVIES & DAVIES ASSOCIATES
LIMITED
Claimant
- and –
STEVE WARD SERVICES (UK) LIMITED
Defendant
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Nigel Davies (a director of the Claimant Company) for the Claimant
James Bowling (instructed by Costigan King) for the Defendant
Hearing date: 23 April 2021
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
Covid-19 Protocol: This judgment will handed down by the judge remotely by
circulation to the parties’ representatives by email and release to Bailii. The date
and time for hand-down is deemed to be 10.30am on Wednesday 19th
May 2021.
.............................

Mr Roger ter Haar QC
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Mr Roger ter Haar QC :
1. There is before me an application on the part of the Claimant for summary judgment
for the fees of Mr. Nigel Davies for acting as the Adjudicator in an Adjudication brought
by the Defendant against Bhavishya Investment Ltd (“BIL”).
2. Although Mr Davies was the Adjudicator, his fees, if payable, were payable to the
Claimant. Hereafter I refer to Mr Davies as “the Adjudicator” save where I am
recording submissions he made before me as representative of the Claimant.
3. The claim (in the sum of £4,290 plus VAT) is for a very small amount of money by the
standard of claims which come before this Court. It raises interesting points as to the
circumstances in which an Adjudicator’s fees are or are not payable.
The Facts
4. In late 2019 – early 2020 the Defendant carried out construction operations at a
restaurant called “Funky Brownz”, 28 Belmont Circle, Kenton Lane, Stanmore,
Middlesex (the Premises).
5. The Premises are owned and operated by BIL as “Funky Brownz”.
6. At all material times one Ms Vaishali Patel was a director and the majority shareholder
in BIL.
7. In late 2019 a set of contract documents was drawn up but not signed.
8. At the head of the proposed contract is a section which reads as follows:
“CLIENT
VAISHALI PATEL
FUNKY BROWNZ
28 Belmont Circle, Belmont
Circle Kenton Lane
Stanmore, Middlesex, United
Kingdom, HA3 8RF (the “Client”)”
9. Clause 1 of the proposed contract provided:
“The Client hereby agrees to engage the Contractor to provide
the Client with the following services (the “Services”):
• DESIGN SUPPLY AND BUILD OF FUNKY
BROWNZ 28 Belmont Circle, Belmont Circle
Kenton Lane, Stanmore, Middlesex, United
Kingdom, HA3 8RF, Internal decorations.”

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10. At the end of the proposed contract, it provided for a seal to be affixed:
“IN WITNESS WHEREOF the Parties have duly affixed their
signatures under hand and seal on this ___ day of _______ ____
“Client
“FUNKY BROWNZ
“Per ____________ (Seal)
Attention: OWNER/PROPITIER MISS VAISHALI
PATEL.”
(The mistyping of the word “Proprietor” is in the original.)
11. As I have said, the contract was never signed. Invoices for the works as they progressed
were however addressed to and paid by BIL.
12. As at completion of the works in February 2020, the Defendant claimed an unpaid
balance of £35,974.29.
13. The parties then fell into dispute about whether the works were complete, defects and
snags.
14. It is the Defendant’s case that it asked for access to carry out any works required in
order to be paid. Access was finally secured on 18 May 2020. The Defendant said it
completed the defects notified.
15. However, payment was still not made: it was claimed that the remedial works were
defective and the works were still incomplete. These exchanges about access and
defects took place between about April 2020 and at least June 2020 between solicitors
for the Defendant and those representing Funky Brownz (I put it this way so as not to
pre-judge who was the Defendant’s counterparty).
16. The Defendant says that all of those communications were on the basis that BIL was
the contracting party liable for any sums due. At no stage did BIL suggest that Ms Patel
was personally liable instead.
17. On 15 April 2020 the Defendant served a Statutory Demand upon for the unpaid sums.
The Statutory Demand was directed at BIL. Claims consultants engaged by BIL
threatened an injunction to restrain presentation of a petition on the basis that the debt
was bona fide disputed because of the defects, but not on the additional ground that BIL
was not the relevant contracting party.
18. The Defendant therefore withdrew the Statutory Demand.
19. Under cover of an e-mail dated 14 September 2020, the Defendant’s solicitors, Costigan
King, submitted a request to The Royal Institution of Chartered Surveyors (“RICS”)
dated 14 September 2020 for the nomination of a construction adjudicator under the
Scheme for Construction Contracts (England and Wales) Regulations 1998 SI No.649
(as amended) (“the Scheme”) and the CIC Low Value Disputes Model Adjudication

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Procedure (“the Model Procedure”) in relation to a dispute said to be with BIL.
Costigan King then sent the Notice of Adjudication to BIL by e-mail of the same date.
20. On 15 September 2020 the Adjudicator was nominated by the RICS to act as the
Adjudicator under the Scheme and the Model Procedure in relation to a dispute defined
as being between the Defendant and BIL.
21. This was the first of two adjudications. The application before me concerns the second
adjudication referred to below.
22. On the same date, 15 September, the Adjudicator wrote to the parties by post and e-
mail providing directions and copies of his terms and conditions by letter. Costigan
King acknowledged receipt of the letter and e-mail under cover of their e-mail of the
following day, 16 September 2020.
23. I refer to the Adjudicator’s terms and conditions in more detail below. They were the
same in respect of both adjudications.
24. Neither party objected to those terms and conditions.
25. Under cover of an e-mail dated 21 September 2020 BIL disputed that the Adjudicator
had jurisdiction to decide the dispute in the first adjudication on the grounds that the
request for nomination of an adjudicator was made to the RICS before the Notice of
Adjudication had been issued by the Defendant to BIL.
26. By email on 21 September 2020 the Adjudicator resigned as adjudicator in the first
adjudication.
27. The Claimant rendered to the Defendant an invoice for 1.7 hours of the Adjudicator’s
time. The Defendant paid this invoice.
28. On behalf of the Defendant, Costigan King issued BIL with a second Notice of
Adjudication dated 21 September 2020 and a second request to the RICS followed on
22 September 2020 for the nomination of a construction adjudicator under the Scheme
and the Model Procedure.
29. On 23 September 2020 the Adjudicator was nominated again by the RICS to act as
Adjudicator under the Scheme and the Model Procedure in relation to the same dispute
between the Defendant and BIL.
30. Again, the Adjudicator wrote to the parties providing directions and copies of his terms
and conditions by letter sent by post and e-mail dated 23 September 2020. His terms
and conditions were identical to those which he had issued to the parties eight days
earlier on 15 September 2020. Again, there was no objection to his terms and
conditions.
31. The Adjudicator received the Response on 8 October 2020 and the Reply on 15 October
2020.
32. In his Skeleton Argument for the hearing before me, Mr Davies set out what happened
next as follows:

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“23. The Response was received on 8 October 2020 …. and the
Reply was received on 15 October 2020 ….
“24. In accordance with Referral para.4 … the Defendant
claimed the Parties to the adjudication had entered into “the
Contract” pursuant to an agreement in writing on or around 21
November 2019 ….
“25. The Contract …. the Defendant had written and relied upon
in order to bring the adjudication, unequivocally recorded that it
was between the Defendant and Miss Vaishali Patel and it
contained both a “Modification of Agreement” clause at para.24
and at para.27 an “Entire Agreement” clause ... Despite
exhaustive enquiries of the documents and of the Parties as per
my e-mail dated 16 October 2020 timed 1759hrs …. I established
that the Contract had not ever changed (e.g. by novation) and
remained to be between the Defendant and Miss Patel.
“26. Para.12(b) of Part 1 of the Scheme …. provides that I was
to avoid incurring unnecessary expense. Following e-mail
correspondence with the Parties dated 15 and 16 October 2020
consistent with para.9 of Part 1 of the Scheme … and para.31 of
the CIC LVD MAP … I resigned as the Adjudicator by e-mail
dated 16 October 2020 timed 1759hrs …. I resigned because
Bhavishya was not a Party to and/or identified within the
Contract on which basis the second adjudication had been
referred and therefore I was without jurisdiction as per paragraph
31 in Dacy Building Services Ltd v IDM Properties LLP [2016]
EWHC 3007 (TCC) (25 November 2016) …. and paragraphs 62
to 64 of the judgment in M Hart Construction Ltd & Anor v Ideal
Response Group Ltd (Rev 1) [2018] EWHC 314 (TCC) (07
March 2018) ….
“27. Clearly, I could not issue a Decision in relation to the
contractual rights of one of the contracting parties in an
adjudication where the other contracting party was not a party to
the process. Obviously, Bhavishya’s participation did not
change this.
“28. It had been necessary to establish such facts because at
Referral para.39 … the Defendant had requested that I provide
written reasons for my Decision and because it was a critical
component to my reasoning. It was a natural consequence of
establishing whether and on what basis the Defendant was
entitled to the payment it claimed from Bhavishya, all in
accordance with para.13 of Part 1 of the Scheme …., i.e. take the
initiative in ascertaining the facts and the law necessary to
determine the dispute. It was part of the process of determining
the adjudication as per paragraph 38 in Ex Novo Limited v MPS
Housing Ltd [2020] EWHC 3804 (TCC) (17 December 2020)
….

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“29. I issued the Claimant’s invoice number 696 in the VAT
inclusive sum of £5,148 …. in accordance with my accepted
terms and conditions …., addressed to the Defendant, by e-mail
to Costigan King dated 19 October 2020 timed 1122hrs …..
“30. Under cover of my e-mail dated 21 October 2020 timed
1654hrs, I provided a breakdown of my time charged under
invoice number 696 …. and …. Out of the 16.9 hours spent I
charged for 13.2 hours.”
33. On 20 October 2020 Costigan King wrote by email to say that the Defendant would
not pay the Claimant’s invoice because it was claimed that Mr Davies had committed
a repudiatory breach of his contract of appointment. The Defendant was said to have
accepted the Adjudicator’s repudiation so that his terms and conditions had ceased to
have effect. It was also claimed that the Claimant was not entitled to payment because
of the Court of Appeal decision in PC Harrington Contractors Limited v Systech
International Limited [2012] EWCA Civ 1371.
The Adjudicator’s Terms and Conditions
34. The covering letters to the Adjudicator’s two appointments made clear that any fees
charged would be paid through the Claimant company.
35. The following were the material provisions of the Adjudicator’s terms and conditions:
“Basis of Charge
“Time related for hours expended working or travelling in
connection with the Adjudication including all time up to
settlement of any Fee Invoice, which, for the avoidance of doubt,
may include any time including Court time, spent securing
payment of any fees, expenses and disbursements due.
“Amount of Charge
“The Adjudicator’s (Nigel J. Davies) fee shall be charged in
accordance with the CIC LVD MAP current as at the date of this
letter as set out in Schedule 1 thereto. Should the said CIC LVD
MAP cease to apply then the amount of charge for the
Adjudicator shall be £325 per hour applied on an ab initio basis,
i.e. it will be applied from the date of the Adjudicator’s
nomination by the RICS.
“In any event the CIC LVD MAP shall no longer apply from the
point at which a CIC LVD MAP Decision is delivered and
thereafter the £325 per hour charge shall apply, e.g. in relation
to securing unpaid fees, expenses and disbursements due.
“….
“Frequency of Charge

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“A Fee Invoice will be raised and is due for payment 7 days
thereafter.
“In the event of the Adjudication ceasing for any reason
whatsoever prior to a Decision being reached, a Fee Invoice will
be raised immediately and is due for payment 7 days after the
date of the Invoice.
“In the event of any invoice not being settled as stated an
additional charge may be raised for interest charges, which
charges will be calculated at the rate of 2.5% per calendar month
or pro-rata any part thereof, for the period between the date of
invoice and the date of payment in full of that invoice.
“Miscellaneous Provisions:
“1. The Parties agree jointly and severally to pay the
Adjudicator’s fees and expenses as set out in this Schedule. Save
for any act of bad faith by the Adjudicator, the Adjudicator shall
also be entitled to payment of his fees and expenses in the event
that the Decision is not delivered and/or proves unenforceable.
“…
“3. The Parties acknowledge that the Adjudicator shall not be
liable for anything done or omitted in the discharge or purported
discharge of his functions as Adjudicator (whether in negligence
or otherwise) unless the act or omission is in bad faith, and any
employee or agent of the Adjudicator shall be similarly protected
from liability.
“4. The Adjudicator is appointed to determine the dispute or
disputes between the Parties and his decision may not be relied
upon by third parties, to whom he shall owe no duty of care….”
The Scheme
36. The statutory scheme for adjudication is contained in the Scheme for Construction
Contracts (England and Wales) Regulations 1998 (SI 1998 No. 649) as amended.
37. Paragraph 9 provides:
“(1) An adjudicator may resign at any time on giving notice in
writing to the parties to the dispute.
“(2) An adjudicator must resign where the dispute is the same or
substantially the same as one which has previously been referred
to adjudication, and a decision has been taken in that
adjudication.
“(3) Where an adjudicator ceases to act under paragraph 9(1) –

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“(a) the referring party may serve a fresh notice under
paragraph 1 and shall request an adjudicator to act in
accordance with paragraphs 2 to 7; and
“(b) if requested by the new adjudicator and insofar as it is
reasonably practicable, the parties shall supply him with
copies of all documents which they had made available to the
previous adjudicator.
“(4) Where an adjudicator resigns in the circumstances referred to
in paragraph (2), or where a dispute varies significantly from the
dispute referred to him in the referral notice and for that reason he
is not competent to decide it, the adjudicator shall be entitled to the
payment of such reasonable amount as he may determine by way of
fees and expenses reasonably incurred by him. Subject to any
contractual provision pursuant to section 108A(2) of the Act, the
adjudicator may determine how the payment is to be apportioned
and the parties are jointly and severally liable for any sum which
remains outstanding following the making of any such
determination.”
“(1) The parties to a dispute may at any time agree to revoke the
appointment of the adjudicator. The adjudicator shall be entitled to
the payment of such reasonable amount as he may determine by way
of fees and expenses incurred by him. Subject to any contractual
provision pursuant to section 108A(2) of the Act, the adjudicator
may determine how the payment is to be apportioned and the parties
are jointly and severally liable for any sum which remains
outstanding following the making of any such determination.
“(2) Where the revocation of the appointment is due to the default
or misconduct of the adjudicator, the parties shall not be liable to
pay the adjudicator’s fees and expenses.”
“The adjudicator shall –
“(a) act impartially in carrying out his duties and shall do so in
accordance with any relevant terms of the contract and shall reach
his decision in accordance with the applicable law in relation to the
contract; and
“(b) avoid incurring unnecessary expense.”

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“The adjudicator may take the initiative in ascertaining the facts and
the law necessary to determine the dispute, and shall decide on the
procedure to be followed in the adjudication…..”
“The adjudicator shall decide the matters in dispute. He may
take into account any other matters which the parties to the
dispute agree should be within the scope of the adjudication or
which are matters under the contract which he considers are
necessarily connected with the dispute ….”
“The adjudicator shall be entitled to the payment of such reasonable
amount as he may determine by way of fees and expenses
reasonably incurred by him. Subject to any contractual provision
pursuant to section 108A(2) of the Act, the adjudicator may
determine how the payment is to be apportioned and the parties are
jointly and severally liable for any sum which remains outstanding
following the making of any such determination.”
“The adjudicator shall not be liable for anything done or omitted
in the discharge or purported discharge of his functions as an
adjudicator unless the act or omission is in bad faith, and any
employee or agent of the adjudicator shall be similarly protected
from liability.”
PC Harrington Contractors Limited v Systech International Limited
44. In any dispute concerning whether an adjudicator is entitled to his or her fees, the
starting point is almost always the Court of Appeal decision in PC Harrington
Contractors Ltd v Systech International Ltd [2012] EWCA Civ 1371; [2013] Bus LR
970; [2013] BLR 1.
45. In PC Harrington the adjudicator was found in each of three references to have reached
a conclusion in breach of his duty to comply with the rules of natural justice in that he
failed to decide a relevant issue raised by way of defence because he took what was
later held to have been an erroneous view as to jurisdiction. The consequence was that
the decisions were unenforceable.
46. The question which arose was whether the adjudicator was entitled to his fees for
producing unenforceable decisions. At first instance Akenhead J. decided that he was.
The Court of Appeal took the opposite view and allowed an appeal.
47. In his judgment the Master of the Rolls said this:
“[32] I return to the question: what was the bargained-for
performance? In my view, it was an enforceable decision. There
is nothing in the contract to indicate that the parties agreed that

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they would pay for an unenforceable decision or that they would
pay for the services performed by the adjudicator which were
preparatory to the making of an unenforceable decision. The
purpose of the appointment was to produce an enforceable
decision which, for the time being, would resolve the dispute. A
decision which was unenforceable was of no value to the parties.
They would have to start again on a fresh adjudication in order
to achieve the enforceable decision which Mr Doherty had
contracted to produce.
“[33] Para 11(2) of the Scheme provides powerful support for
PCH’s case. If the adjudicator’s appointment is revoked due to
his default or misconduct, he is not entitled to any fees. It can
hardly be disputed that the making of a decision which is
unenforceable by reason of a breach of the rules of natural justice
is a “default” or “misconduct” on the part of an adjudicator. It is
a serious failure to conduct the adjudication in a lawful manner.
If during the course of an adjudication, the adjudicator indicates
that he intends to act in breach of natural justice (for example,
by making it clear that he intends to make a decision without
considering an important defence), the parties can agree to
revoke his appointment. In that event, the adjudicator is not
entitled to any remuneration. It makes no sense for the parties to
agree that the adjudicator is not entitled to be paid if his
appointment is revoked for default or misconduct before he
makes his purported decision, but to agree that he is entitled to
full remuneration if the same default or misconduct first
becomes manifest in the decision itself. I would not construe the
agreement as having that nonsensical effect unless compelled to
do so by express words or by necessary implication. I can find
no words which yield such a meaning either expressly or by
necessary implication.
“[34] The fact that the adjudicator was not liable for anything
done or omitted to be done unless it was in bad faith (para 26)
lends further support to the view that the parties did not intend
that the adjudicator should be paid for producing an
unenforceable decision. If Miss Rawley is right, the adjudicator
was entitled to be paid the same fee for producing an
unenforceable decision as for producing one that was
enforceable and yet, absent bad faith, the parties are not able to
claim damages for the adjudicator's failure to produce an
enforceable decision, regardless of the seriousness of the failure
and the loss it has caused. That is a most surprising bargain for
the parties to have made. I would be reluctant to impute to them
an intention to make such a bargain unless compelled to do so. I
can find nothing in the terms of engagement or the Scheme
which compels the conclusion that this was their intention.
“The position of judges and arbitrators

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“[35] As I have said, the judge seems to have found support for
his conclusion that the functions performed by an adjudicator
which are ancillary and anterior to the making of a decision are
valuable in their own right by comparing the position of
adjudicators with that of arbitrators and judges: see para 12
above. Miss Rawley has not relied on this part of the judge's
reasoning. I think that she is right not to do so. A judge has an
inherent jurisdiction and does not derive his powers over a
dispute from a contract of appointment. That is sufficient to
render any comparison with a judge wholly inapposite.
“[36] At first sight, the comparison with the position of
arbitrators might seem to be more fruitful, since they derive their
authority from a contract with the parties. But as Mr Bowling
points out, there are important differences between adjudicators
and arbitrators. First and foremost, serious errors and
fundamental misunderstandings by an arbitrator do not
invalidate his award. The award is binding, subject to the
supervisory jurisdiction of the court under sections 66-68 of the
Arbitration Act 1996. Secondly, when anterior and ancillary
functions are carried out by an arbitrator, they are binding on the
parties (and therefore the arbitrator gives value in performing
them). If the arbitrator ceases to hold office during the course of
a reference, the parties are free to agree whether and, if so, how
the vacancy is to be filled and whether and, if so, to what extent
the previous proceedings should stand: see section 27 of the Act.
This is to be contrasted with the position in an adjudication: if
the adjudicator's appointment is terminated (for whatever
reason), the process must be started again with a fresh referral.
Thirdly, an arbitrator has inherent jurisdiction and power to
make a binding decision on the scope of his own jurisdiction,
unless the parties otherwise agree: section 30 of the Act. An
arbitrator, unlike an adjudicator, can give value by providing a
binding ruling on his jurisdiction.
“Policy considerations
“[37] Finally, I should deal briefly with the judge's recourse to
policy considerations. I accept that the statutory provisions for
adjudication reflect a Parliamentary intention to provide a
scheme for a rough and ready temporary resolution of
construction disputes. That is why the courts will enforce
decisions, even where they can be shown to be wrong on the facts
or in law. An erroneous decision is nevertheless an enforceable
decision within the meaning of the 1996 Act and the Scheme.
But a decision which is unenforceable because the adjudicator
had no jurisdiction to make it or because it was made in breach
of the rules of natural justice is quite another matter. Such a
decision does not further the statutory policy of encouraging the
parties to a construction contract to refer their disputes for

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temporary resolution by an adjudicator. It has quite the opposite
effect. It causes the parties to incur cost and suffer delay on a
futile exercise. I can see no basis for holding that Parliament
must have intended that an adjudicator who produces an
unenforceable decision should be entitled to payment. As I have
attempted to show, Parliament did address the question of
remuneration in the Scheme and produced a carefully calibrated
set of provisions. I suppose that Parliament could have provided
that an adjudicator was entitled to reasonable remuneration even
where he produced an unenforceable decision, although this
possibility seems rather fanciful to me. But it did not do so. I do
not consider that it is legitimate, in effect, to rewrite the Scheme
on the basis of some unarticulated Parliamentary policy
grounds.”
48. In his judgment, Davis L.J. said:
“[40] In the present case, as Akenhead J found at the earlier
hearing, the adjudicator – albeit acting in good faith – entirely
failed to deal with a defence raised which (if valid, which it may
or may not have been) would have defeated Tyroddy's claims.
Further, he failed first to advise the parties of his intended
approach or seek their submissions. So it can properly be said
that there was here a breach of the rules of natural justice
constituting a "default" of which he was the author. But it will
not always be so. For example, the logic of Mr Bowling's
argument would, as he accepted, apply – absent specific
contractual terms to the contrary – to cases where, for example,
an adjudicator, having done a considerable amount of work, died
or was struck down with serious incapacitating illness before a
decision could be produced at all.
“[41] That said, in my view the key nevertheless is to consider
what was the contractual bargain actually made. To say in
general terms, as Mr Bowling did as an opening observation, that
the law does not require people to pay for worthless things is not
necessarily right as a generalisation and is wrong in failing to
focus on what the actual terms of the contract are. I in fact did
not regard either counsel's respective appeals to the asserted
merits very helpful. All depends on the contract actually made.
“[42] To me, what effectively decides the matter in favour of the
appellant are the terms of the Scheme itself. As the Master of the
Rolls has explained, the terms of paragraph 9 and of paragraph
11 – and in particular the intention behind and implications of
paragraph 11(2) – indicate that the conclusion for which Mr
Bowling contended is the correct one. Nor do the Terms of
Engagement employed by Mr Doherty and incorporated into this
particular contract indicate any different conclusion.

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“[43] I also would attach significant weight to paragraph 20 of
the Scheme. That expressly stipulates that the adjudicator shall
decide the matters in dispute. But where, as here, an adjudicator
delivers a decision which is entirely unenforceable then he will
not have decided the matters in dispute. On Miss Rawley's
argument the parties – absent an express term – not only have no
redress for any loss (in that the Scheme excludes any warranty
on the part of the adjudicator and excludes any liability for acts
done or omitted, absent bad faith) they also must pay the
adjudicator's fees notwithstanding that the adjudicator has not
decided the matters in dispute. In my view, that would be
surprising and is also an indicator in favour of Mr Bowling's
argument.
“[44] As to the special situation arising in an adjudication where
one of the parties raises a challenge on jurisdiction before a
decision is reached and then, having received the adjudicator's
ruling on jurisdiction, elects that the adjudicator should proceed
to a decision, that situation is in my view correctly addressed by
Ramsey J at paragraphs 76 to 79 of his judgment in Linnett v
Halliwells LLP [2009] EWHC 319 (TCC), [2009] BLR 312. The
adjudicator's fees are then – subject of course to any express
terms agreed – payable even if the Court subsequently were to
declare the initial challenge to the jurisdiction to have been well-
founded.
“[45] I therefore would conclude in the present case that the
adjudicator is not entitled to be paid any fees. He has not
produced an (enforceable) decision which determines the
matters in dispute: which is what this contract required of him
before his entitlement to fees arose.
“[46] I doubt if the present decision should have any very great
ramifications. Prior to this case, I personally had had little
acquaintance with the adjudication Scheme under the 1996 Act.
It appears, from what we were told, generally to be working very
well indeed – and not least, I suspect, because of the short
prescribed time limits and the splendid "pay now, argue later"
approach, which is thoroughly to be commended. At all events
in the fifteen years or so since the scheme has been operating this
particular kind of dispute about fees seems, as we were told, not
previously to have surfaced in the courts. In any case, if this
decision does give rise to concerns on the part of adjudicators
then the solution is in the market-place: to incorporate into their
Terms of Engagement (if the parties to the adjudication are
prepared to agree) a provision covering payment of their fees and
expenses in the event of a decision not being delivered or proving
to be unenforceable. It is of course a consequence of this court's
conclusion that it is for the adjudicator to stipulate for such a

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term: not for the parties to the adjudication to stipulate to the
contrary.”
49. Mr Davies told me that the terms and conditions upon which the Claimant relies were
drafted in the light of Davis L.J.’s judgment.
The Issues before the Court
50. In his skeleton argument, Mr Bowling, for the Defendant, identifies the issues before
the Court as follows:
(1) Whether there was a threshold point of jurisdiction before the Adjudicator
pursuant to which he was entitled to resign, or whether the Adjudicator’s
decision to do so represented abandonment of his appointment and a deliberate
and impermissible refusal to provide a Decision1
.
(2) The proper construction of the following clauses in the Adjudicator’s standard
terms, which the Adjudicator claims entitle him to payment for work done to the
point of abandonment, the lack of a Decision notwithstanding:
a) Clause 1 of the Adjudicator’s standard terms (“Save for any act of bad
faith by the Adjudicator, the Adjudicator shall … be entitled to payment
of his fees and expenses in the event that the Decision is not delivered
and/or proves unenforceable”2
); and
b) The unnumbered clause stating that “In the event of the Adjudication
ceasing for any reason whatsoever prior to a Decision being reached, a
Fee Invoice will be raised immediately and [become] due for payment
…”
(3) If those clauses are effective in the manner the Adjudicator contends, whether
they are nevertheless void under s3(2)(b) of the Unfair Contract Terms Act
1977.
(4) If a fee is payable, whether 13.20hrs is excessive given the amount of work done
on the application of Fenice Investments v Jerram Falkus Construction [2011]
EWHC 1678 (TCC).
Issue No. 1: Was there a threshold jurisdictional issue?
51. The Adjudicator took the view that it was clear that the underlying contract was between
the Defendant and Ms Patel, not between the Defendant and BIL.
52. If that was the correct view, then, subject to waiver on the part of BIL, the Adjudicator
was correct in deciding that he had no jurisdiction over the dispute: Dacy Building
Services Ltd v IDM Properties Ltd [2016] EWHC 3007 (TCC); [2017] BLR 114 and M
Hart Construction Ltd & Anor v Ideal Response Group Ltd [2016] EWHC 3007 (TCC).
1 Defence para 12 [21]
2 [96]

Approved Judgment
D v S
53. To that extent, I did not understand Mr Bowling to dissent. However he submitted,
firstly, that the preponderance of evidence showed that BIL, rather than Ms Patel, was
the contracting party.
54. I do not accept this first argument. The Referral clearly placed the case upon the basis
that the contract was a contract in writing. Whilst the proposed contract was unsigned,
it clearly envisaged that the contract would be between the Defendant and Ms Patel. I
also note that the Defence in this action did not contend that the construction contract
was with BIL.
55. On the evidence before him, it seems to me at the lowest the Adjudicator was entitled
to conclude that the contract was with Ms Patel, not BIL.
56. Secondly Mr Bowling argues that in any event, there was submission to the jurisdiction
by BIL. By paragraphs 4 – 11 of the Referral SCS made a clear allegation that the
construction contract was with BIL. The Response did not dispute that, concentrating
on BIL’s allegations of defects in the works provided to it, together with BIL mounting
a counterclaim for some £82,768.20. Mr Bowling submits that the submission of a
Response in these terms amounted to a clear waiver of any threshold jurisdictional point
based on an allegation that the contract was with Ms Patel instead; see Brims v A2M
[2013] EWHC 3262 (TCC) and Thomas-Fredric’s (Construction) Limited v Keith
Wilson [2004] BLR 24 per Simon Brown LJ at [31].
57. In my view, based upon those decisions, it was probably the case that if after the
Adjudicator had issued a decision, BIL were to suggest that the Adjudicator did not
have jurisdiction to issue that decision upon the basis that BIL was a not a party to the
contract, BIL would be held to have waived the right to pursue such a jurisdictional
argument.
58. Developing that argument, Mr Bowling says that to the extent that a party does not
adopt a jurisdictional issue (such as there may be) a fortiori it is not open to the
Adjudicator to decline jurisdiction. The Adjudicator’s power to take the initiative to
ascertain the facts and the law (Scheme Part I para 13) is obviously to be exercised in
the context of the dispute the parties empower the Adjudicator to decide. It is not a
roving commission to identify, formulate and decide the reference on the basis of new
and fundamental issues neither party raises nor adopts despite invitation.
59. I do not find this an easy point. It is undoubtedly the case that the Adjudicator has
power to take the initiative, and that in this case the Adjudicator believed that he was
exercising that power. Further, I accept that the Adjudicator believed that to take the
initiative was consistent with his duty under paragraph 12 of the Scheme to avoid
unnecessary expense.
60. In my judgment it would have been wiser for the Adjudicator not only to inquire as to
the parties’ position as to who were the contracting parties, but also to inquire in terms
as to whether both parties accepted that he had jurisdiction. However he did not do
that.
61. The effect of what the Adjudicator did was to deprive the parties of an answer to their
differences as to what sum was payable (either by Ms Patel or by BIL) in respect of the

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D v S
project. However it is fair to say that BIL never showed any enthusiasm for this dispute
to be aired.
62. The conclusion to which I have come is that the route which the Adjudicator took was
outside the ambit of paragraph 13 of the Scheme: that paragraph entitles the Adjudicator
to investigate matters “necessary to determine the dispute”, which necessarily involves
the question, what is the dispute? At the time when the Adjudicator resigned, there was
no dispute either as to the identity of the contracting parties or as to his jurisdiction.
63. Accordingly, in my view the Adjudicator’s reasoning in deciding to resign on the basis
that he had no jurisdiction when that was not an issue which the parties had referred to
him was erroneous.
64. However, that is not an end of the matter. It is necessary to consider whether the
Adjudicator was nevertheless entitled to the fees claimed.
65. It is submitted by Mr Bowling that the Adjudicator’s decision to resign “represented
abandonment of his appointment and a deliberate and impermissible refusal to provide
a Decision.”
66. I do not accept that characterisation of what the Adjudicator did. Far from “abandoning
his appointment”, the Adjudicator acted in accordance with what he regarded as being
his duty. Far from there being a “deliberate and impermissible refusal to provide a
Decision”, the Adjudicator resigned upon the basis that it was not open to him to reach
a Decision in a dispute between the Defendant and BIL of the rights and obligations of
a contract between the Defendant and Ms Patel. That is very far from being a
“deliberate and impermissible refusal to provide a Decision”.
67. Further, resignation by an Adjudicator is not of itself a breach of the terms of the
Adjudicator’s engagement since paragraph 9(1) of the Scheme permits the Adjudicator
to resign at any time on giving notice to the parties: the question here is whether upon
resigning the Adjudicator was still entitled to his fees.
68. In my judgment the answer to that question turns upon the true construction of the
Adjudicator’s terms and conditions.
Issue No. 2: the effect of the Adjudicator’s Terms and Conditions
69. The first relevant provision is in the section headed “Frequency of Charge”:
“In the event of the Adjudication ceasing for any reason
whatsoever prior to a Decision being reached, a Fee Invoice will
be raised immediately and is due for payment 7 days after the
date of the Invoice.”
70. On its face, this provision would entitle the Adjudicator to receive fees whenever the
adjudication cessed, even if it ceased in circumstances where the Adjudicator was
acting in bad faith. That would be a strange conclusion particularly given the terms of
Clauses 1 and 3. In my judgment this clause should not be construed as entitling the
Adjudicator to fees where no fees would be payable under Clause 1. This clause is in

Approved Judgment
D v S
a section headed “frequency of charge”, and I read the sentence I have set out in the
previous paragraph as being concerned with the timing of an invoice and payment.
71. As I have already set out, Clause 1 provides:
“The Parties agree jointly and severally to pay the Adjudicator’s
fees and expenses as set out in this Schedule. Save for any act
of bad faith by the Adjudicator, the Adjudicator shall also be
entitled to payment of his fees and expenses in the event that the
Decision is not delivered and/or proves unenforceable.”
72. Mr Bowling draws attention to the word “also” in the second sentence of this Clause.
He distinguishes this case from cases such as those where an Adjudicator issues an
unenforceable decision or produces a decision but fails to deliver it in time. Here, he
says, the Adjudicator at one and the same time managed to abdicate his responsibility,
exceeded his jurisdiction and failed to exhaust it. He says that this is a situation or a
congeries of situations to which Clause 1 does not apply.
73. I do not agree with this submission: in my judgment the Clause means that in addition
to being paid for producing a Decision (which is the normal event upon the occurrence
of which an Adjudicator is entitled to payment) the Adjudicator is entitled to be paid
his fees for work done unless there has been an act of bad faith on the Adjudicator’s
part.
74. Mr Bowling’s next submission focuses on the meaning of the phrase “bad faith”. He
submits that this should be construed as meaning “misconduct”, that is to say a situation
where the Adjudicator acts in a manner which is commercially improper and which
doesn’t honour or maintain fidelity to the bargain the Adjudicator has struck with the
parties.
75. In support of that submission he cites the decision of Leggatt J., as he then was, in Yam
Send Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB);
[2013] 1 Lloyd’s Rep. 526
“[134] Importantly for present purposes, the relevant
background against which contracts are made includes not only
matters of fact known to the parties but also shared values and
norms of behaviour. Some of these are norms that command
general social acceptance; others may be specific to a particular
trade or commercial activity; others may be more specific still,
arising from features of the particular contractual relationship.
Many such norms are naturally taken for granted by the parties
when making any contract without being spelt out in the
document recording their agreement.
“[135] A paradigm example of a general norm which underlies
almost all contractual relationships is an expectation of honesty.
That expectation is essential to commerce, which depends
critically on trust. Yet it is seldom, if ever, made the subject of
an express contractual obligation. Indeed if a party in
negotiating the terms of a contract were to seek to include a

Approved Judgment
D v S
provision which expressly required the other party to act
honestly, the very fact of doing so might well damage the parties’
relationship by the lack of trust which this would signify.
“[136] The fact that commerce takes place against a background
expectation of honesty has been recognised by the House of
Lords in HIH Casualty v Chase Manhattan Bank [2003] 2
Lloyd’s Rep 61. In that case a contract of insurance contained a
clause which stated that the insured should have “no liability of
any nature to the insurers for any information provided”. A
question arose as to whether these words meant that the insured
had no liability even for deceit where the insured’s agent had
dishonestly provided information known to be false. The House
of Lords affirmed the decision of the courts below that, even
though the clause read literally would cover liability for deceit,
it was not reasonably to be understood as having that meaning.
As Lord Bingham put it at [15]:
“Parties entering into a commercial contract … will assume
the honesty and good faith of the other; absent such an
assumption they would not deal.”
“To similar effect Lord Hoffmann observed at [68] that “parties
contract with one another in the expectation of honest dealing”,
and that:
“… in the absence of words which expressly refer to
dishonesty, it goes without saying that underlying the
contractual arrangements of the parties there will be a
common assumption that the parties involved will behave
honestly.”
“[137] As a matter of construction, it is hard to envisage any
contract which would not reasonably be understood as requiring
honesty in its performance. The same conclusion is reached if
the traditional tests for the implication of a term are used. In
particular the requirement that parties will behave honestly is so
obvious that it goes without saying. Such a requirement is also
necessary to give business efficacy to commercial transactions.
“[138] In addition to honesty, there are other standards of
commercial dealing which are so generally accepted that the
contracting parties would reasonably be understood to take them
as read without explicitly stating them in their contractual
document. A key aspect of good faith, as I see it, is the
observance of such standards. Put the other way round, not all
bad faith conduct would necessarily be described as dishonest.
Other epithets which might be used to describe such conduct
include “improper”, “commercially unacceptable” or
“unconscionable”.

Approved Judgment
D v S
“[139] Another aspect of good faith which overlaps with the first
is what may be described as fidelity to the parties’ bargain. The
central idea here is that contracts can never be complete in the
sense of expressly providing for every event that may happen.
To apply a contract to circumstances not specifically provided
for, the language must accordingly be given a reasonable
construction which promotes the values and purposes expressed
or implicit in the contract. That principle is well established in
the modern English case law on the interoperation of contracts:
see e.g. Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900;
Lloyds TSB Foundation for Scotland v Lloyds Banking Group
Plc [2013] UKSC 3 at [23, [45] and [54]. It also underlies and
explains, for example, the body of cases in which terms requiring
cooperation in the performance of the contract have been
implied: see Mackay v Dick (1881) 6 App Cas 251, 263; and the
cases referred to in Chitty on Contracts (31st
Ed), Vol 1 at paras
13-012 – 13-014.”
76. Mr Bowling submits that the Adjudicator decided he was not going to decide the dispute
which he had agreed to decide, and thus was not faithful to the bargain he had struck to
act as Adjudicator.
77. In my view this argument bears considerable similarity to the argument which Mr
Bowling successfully made to the Court of Appeal in PC Harrington v Systech. In that
case the argument was that by coming to an erroneous view as to his jurisdiction to
determine certain issues, the Adjudicator placed himself in a position where he
delivered unenforceable decisions: in those circumstances, it was held that he was not
entitled to recover his fees.
78. In that case, Davis L.J. suggested at paragraph [46] that the problem faced by an
adjudicator in such a circumstance could be avoided be suitable terms in his contract of
engagement:
“In any case, if this decision does give rise to concerns on the
part of adjudicators then the solution is in the market-place: to
incorporate into their Terms of Engagement (if the parties to the
adjudication are prepared to agree) a provision covering payment
of their fees and expenses in the event of a decision not being
delivered or proving to be unenforceable. It is of course a
consequence of this court's conclusion that it is for the
adjudicator to stipulate for such a term: not for the parties to the
adjudication to stipulate to the contrary.”
79. I do not think it desirable in this case, where I have heard argument limited to the facts
of this particular case, to discuss at any length the limits of “bad faith” in construing a
clause such as Clause 1. It is sufficient for me to say that a situation such as this where
an Adjudicator acting with diligence and honesty comes to the conclusion that the
proper course is for him to exercise his right under Paragraph 9(1) of the Scheme to
resign is not a situation within the expression “bad faith”.

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D v S
80. Accordingly, my conclusion is that on the true construction of his terms and conditions,
the Adjudicator was entitled to be paid for the work done by him, subject to the
application of the Unfair Contract Terms Act 1977 (“UCTA”), to which I refer below.
81. Before moving to the application of UCTA, I should note another argument put forward
on behalf of the Defendant: it is suggested that on analysis the parties revoked the
Adjudicator’s appointment. This seems to me simply wrong on the facts. His
appointment as Adjudicator came to an end upon his resignation. Thereafter there was
no extant appointment to revoke.
Unfair Contract Terms Act
82. The Defendant contends that if the clauses of his terms and conditions are to be
construed in the manner the Adjudicator contends, they are void under section 3(2)(b)
of UCTA in that they allow the Adjudicator to render performance substantially
different from that contracted for. The clauses are in the Adjudicator’s standard terms
of business. The starting presumption therefore is that they are void; the Adjudicator
can only rely on them if he can show they satisfy the test of reasonableness.
83. Section 3 of UCTA provides:
“(1) This section applies as between contracting parties where
one of them deals on the other’s written standard terms of
business.
“(2) As against that party, the other cannot by reference to any
contract term –
“(a) when himself in breach of contract, exclude or restrict any
liability of his in respect of the breach; or
“(b) claim to be entitled –
“(i) to render a contractual performance substantially
different from that which was reasonably expected of
him, or
“(ii) in respect of the whole or any part of his contractual
obligation, to render no performance at all.
“except in so far as (in any of the cases mentioned above in this
subsection) the contract terms satisfies the requirement of
reasonableness.”
84. I have considerable doubt whether Clause 1 is caught by Section 3 of UCTA. Clause 1
is simply concerned with payment of the Adjudicator’s fees. It says nothing about what
contractual performance the Adjudicator is expected to perform. In any event,
paragraph 9(1) of the Statutory Scheme gives the Adjudicator an unfettered right to
resign which is relevant to the contractual performance that the Adjudicator is expected
to perform

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D v S
85. If I am wrong as to the application of section 3, I have no hesitation in holding that
Clause 1 satisfied the requirement of reasonableness in UCTA:
(1) The provision was drafted with the judgment of Davis L.J. in mind and therefore
in accordance with terms which the Court of Appeal regarded as being capable
of being commercially acceptable – I put it that way because ultimately what is
acceptable is a matter for the contracting parties;
(2) On Mr Bowling’s submissions, the Adjudicator’s terms are terms commonly
found;
(3) There was no inequality of bargaining power;
(4) The Defendant could have rejected the terms (and sought a different
adjudicator), but instead accepted them not once but twice: on each occasion the
Defendant was represented by solicitors with enormous experience and
expertise in respect of adjudications.
The Amount of the Fees
86. The Defendant disputes the amount of fees claimed.
87. Mr Davies said in his submissions that the hours charged were less than the number of
hours actually expended.
88. I do not regard the amount charged as being excessive.
Conclusion
89. There will be judgment for the Claimant as sought.

Neutral Citation Number: [2022] EWCA Civ 153
Case No: A1/2021/1454
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
MR ROGER TER HAAR QC (Sitting as Deputy High Court Judge)
[201] EWHC 1337 (TCC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14/02/2022
Before :
LORD JUSTICE MOYLAN
LORD JUSTICE COULSON
and
LORD JUSTICE ARNOLD
- - - - - - - - - - - - - - - - - - - - -
Between :
Steve Ward Services (UK) Limited Appellant
- and -
Davies & Davies Associates Limited Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
James Bowling (instructed by Costigan King) for the Appellant
Nigel Davies appeared in person for the Respondent
Hearing Date : 25 January 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely by circulation to the parties’ representatives by
email and released to BAILII and the National Archives. The date and time for hand-down is
deemed to be 10.30am on 14 February 2022

Judgment Approved by the court for handing down. Ward v Davis
LORD JUSTICE COULSON :
1. INTRODUCTION AND PRELIMINARY PROCEDURAL MATTERS
1. The principal issue raised by this appeal concerns the entitlement of an adjudicator to
his or her fees, in circumstances where they have resigned from the Referral because
they did not consider that they had the necessary jurisdiction to decide the dispute.
There is very limited authority on that point, and it has been 8 years since this court
last considered an adjudicator’s entitlement to fees in circumstances where the
Referral did not go as anticipated.
2. Sitting as a deputy high court judge, Mr Roger Ter Haar QC (“the judge”) concluded
that the adjudicator was entitled to recover his fees of £4,290 plus VAT and interest
because he acted honestly and diligently and not in bad faith, and because that was the
effect of his terms of appointment, which did not fall foul of the Unfair Contract
Terms Act 1977 (“UCTA”). There is no dispute that, under those terms, the claiming
party in the adjudication, Steve Ward Services (UK) Limited (“SWS”), was jointly
and severally liable to pay any fees found due. That explains their presence in these
proceedings as the defendant/appellant.
3. SWS now seek to appeal against the judge’s principal conclusions. The adjudicator,
Mr Davies (whose firm is the claimant in the proceedings and the respondent to this
appeal) represented himself both before the judge and before this court. His
Respondent’s Notice seeks to challenge the one finding made against him by the
judge, namely that his reasons for resignation were “erroneous” and that, in so acting,
he went beyond his powers.
4. There were a number of preliminary procedural disputes. In particular, Mr Davies
contended that, when the judge gave SWS permission to appeal, he did so on a limited
basis and that certain issues now raised by Mr Bowling on behalf of SWS were not
encompassed by the permission to appeal that the judge had granted. On behalf of
SWS, Mr Bowling submitted that it was quite plain that the permission granted by the
judge was not limited, and covered all the matters subsequently raised in his
Appellant’s Notice.
5. It is an unhappy fact of life that, when the judge below grants permission to appeal
(rather than this court), there will often be a dispute about the scope of the appeal for
which permission has been granted: see most recently TRW Ltd v Panasonic Industry
Europe GmbH [2021] EWCA Civ 1558, at [75]. It is important that, in any order
made by the first instance judge granting permission to appeal, the issues on which
permission is being granted are expressly spelt out. That is even more important
where, as here, there is a cross-appeal and one of the parties is, to all intents and
purposes, a litigant in person.
6. That said, it is plain that the judge intended to grant SWS permission to appeal in
respect of all the principal issues on which they had lost. Although it is right to say
that, in his short judgment granting permission, the judge expressly referred only to
the construction of the adjudication agreement and its application to the facts of this
case, it is plain that he was not intending to limit the permission to just those points. If
he was, he would have said so. Moreover, the order granting permission to appeal was

not limited in any way. Accordingly, I deal below with all the issues raised in the
skeleton arguments by both sides, without qualification.
7. In addition, there were separate disputes about the documents to which this court
could have regard in deciding this appeal and cross-appeal. I ruled on 17 September
2021 that certain documents could not be relied on by Mr Davies, because they were
not before the judge. But all the other disputed documents were before him, and were
therefore properly admissible on the appeal. I note, however, that some of those
documents went to support an entirely new argument, concerned with the construction
of Mr Davies’ terms of appointment, which Mr Bowling had not advanced before the
judge or in his skeleton argument, and which he candidly admitted had occurred to
him “last week”.
8. In Section 2 below, I set out the relevant facts, including the terms of the contract
between SWS and Mr Davies. In Section 3, I identify the judge’s main conclusions,
and set out the six issues which arise on this appeal. Thereafter, in Sections 4 – 9, I
address each of those issues by reference to the detailed findings of the judge, the
relevant law and my analysis of the competing submissions. There is a short summary
of my conclusions in Section 10. I regret that the numerous arguments raised by SWS
in support of their defence to this modest claim for fees by Mr Davies have made this
a longer judgment than I would have wished.
2. THE FACTS
2.1 The Background
9. In late 2019/early 2020, SWS carried out construction works at a restaurant called
‘Funky Brownz’ in Stanmore in Middlesex (“the property”). Although there was no
concluded written contract governing these works, there was a proposed set of
contract documents, drawn up in late 2019, on which, at various times, all sides have
relied. They referred to “the Client” as Vaishali Patel and “The Contractor” as SWS.
Pursuant to clause 1 of the proposed contract:
“The Client hereby agrees to engage the Contractor to provide
the Client with the following services…”
Those services were described as “design, supply and build of Funky
Brownz…internal decorations”.
10. At the end of the contract where the signature spaces were, the client was described as
‘Funky Brownz’ and its owner/proprietor was “Miss Vaishali Patel”.
11. There was no mention anywhere in the proposed contract of a company called
Bhavishya Investment Limited (“BIL”). Their precise relationship with Ms Patel and
with Funky Brownz is a little obscure although it appears that, at least in late
2019/early 2020, Ms Patel was a director and the majority shareholder in BIL. It was
subsequently said that BIL owned the premises in Stanmore. In any event, invoices
for the works were addressed by SWS to BIL and paid by BIL.
12. In 2020, SWS claimed an unpaid balance of £35,974.29 in respect of the works. There
was a dispute about defects and then a dispute about access being granted to allow

SWS to rectify any defects notified. The monies remained unpaid and a dispute arose.
In April 2020, SWS served a Statutory Demand on BIL, but that was subsequently
withdrawn.
13. In September 2020, SWS’s solicitors, Costigan King, sought to commence
adjudication proceedings against BIL in respect of the unpaid amount of £36,000 odd.
Mr Davies was nominated to act as the adjudicator by the RICS and his terms of
appointment were sent to both parties. Neither objected to those terms. However, BIL
disputed that Mr Davies had the necessary jurisdiction, on the ground that the request
for nomination had been made to the RICS before the notice of adjudication (“the
Referral”) had been issued to BIL. In consequence of that technical objection, Mr
Davies resigned as the adjudicator. Mr Davies sent an invoice for fees referrable to
the time that he had spent on the adjudication prior to resignation. SWS paid without
objection.
14. On 21 September 2020, Costigan King issued BIL with a second notice of
adjudication. The Referral was in the same terms as before, and alleged a contract in
writing between SWS and BIL. The following day, 22 September, Costigan King
made a second request to the RICS for nomination of an adjudicator. On 23
September 2020, Mr Davies was again nominated by the RICS to act as adjudicator.
Again, Mr Davies wrote to the parties, by post and by email on 23 September 2020,
enclosing the same terms of appointment he had sent the week before. Again, there
was no objection to them.
2.2 The Terms of Mr Davies’ Appointment
15. Mr Davies’ contract of appointment, for what should have been a simple and
straightforward adjudication, was made up of four separate documents. They were: i)
His letter of 23 September to the parties; ii) His own terms of appointment; iii) The
CIC Low Value Dispute Model Adjudication Procedure (1st
Edition)(“the MAP”); and
iv) The Scheme for Construction Contracts (England and Wales) Regulations 1998
(SI 1998 649), as amended (“the Scheme”).
16. What was the position if Mr Davies’ letter or his own terms and conditions differed
from or contradicted the provisions of the MAP or the Scheme? It seemed to me that,
in those circumstances, and subject to UCTA, Mr Davies’ letter and his own terms
and conditions would take precedence, because they were bespoke terms applicable to
this particular adjudication, and so would prevail over the general provisions of the
Scheme: for a recent example of the particular overriding the general as a matter of
contract construction, see Towergate Financial (Group) Limited v Hopkinson [2020]
EWHC 984 (Com), and the detailed discussion of this topic in the 7th edition of ‘The
Interpretation of Contracts’ by Sir Kim Lewison, at 7.46-7.52. Mr Bowling accepted
that proposition. He said that, by the same process, the MAP would prevail over the
Scheme, although he maintained, rather optimistically, that all the applicable terms
said the same thing.
17. Mr Davies’ letter of 23 September 2020 confirmed his acceptance of the RICS’
nomination to act as the MAP Adjudicator. It referred to his terms of appointment
which were attached. The only particular passage in the letter to which our attention
was drawn was the first paragraph on the second page which said:

“The adjudicator is proceeding in accordance with the CIC
LVD MAP current as at the date of this letter unless either
Party objects in writing within 48 hours of receipt of this letter,
in the event of which the said CIC LVD MAP will not apply on
an ab initio basis (i.e. from the date of the RICS’s
nomination).”
As I have said, there was no such objection.
18. The terms set out in the Schedule attached to the letter included the following:
“Basis of Charge
"Time related for hours expended working or travelling in connection with the
Adjudication including all time up to settlement of any Fee Invoice, which, for
the avoidance of doubt, may include any time including Court time, spent
securing payment of any fees, expenses and disbursements due.
Amount of Charge
The Adjudicator's (Nigel J. Davies) fee shall be charged in accordance with
the CIC LVD MAP current as at the date of this letter as set out in Schedule 1
thereto. Should the said CIC LVD MAP cease to apply then the amount of
charge for the Adjudicator shall be £325 per hour applied on an ab initio basis,
i.e. it will be applied from the date of the Adjudicator's nomination by the
RICS.
In any event the CIC LVD MAP shall no longer apply from the point at which
a CIC LVD MAP Decision is delivered and thereafter the £325 per hour
charge shall apply, e.g. in relation to securing unpaid fees, expenses and
disbursements due.….
Frequency of Charge
A Fee Invoice will be raised and is due for payment 7 days thereafter.
In the event of the Adjudication ceasing for any reason whatsoever prior to a
Decision being reached, a Fee Invoice will be raised immediately and is due
for payment 7 days after the date of the Invoice.
In the event of any invoice not being settled as stated an additional charge may
be raised for interest charges, which charges will be calculated at the rate of
2.5% per calendar month or pro-rata any part thereof, for the period between
the date of invoice and the date of payment in full of that invoice.
Miscellaneous Provisions:
1. The Parties agree jointly and severally to pay the Adjudicator's fees and
expenses as set out in this Schedule. Save for any act of bad faith by the
Adjudicator, the Adjudicator shall also be entitled to payment of his fees and
expenses in the event that the Decision is not delivered and/or proves
unenforceable.…
3. The Parties acknowledge that the Adjudicator shall not be liable for
anything done or omitted in the discharge or purported discharge of his
functions as Adjudicator (whether in negligence or otherwise) unless the act or

omission is in bad faith, and any employee or agent of the Adjudicator shall be
similarly protected from liability.
4. The Adjudicator is appointed to determine the dispute or disputes between
the Parties and his decision may not be relied upon by third parties, to whom
he shall owe no duty of care….”
(Emphasis supplied)
19. Mr Bowling spent some time on the provisions of the MAP, in order to found his new
argument about the construction of Clause 1 of Mr Davies’ terms and conditions,
highlighted in the previous paragraph. The MAP sets out a streamlined adjudication
procedure for low value disputes, linking the fee to the amount claimed. The rates
were set out in paragraph 45 of the MAP: for a claim such as this, for between
£25,000 to £50,000, the fixed fee was £6,000. There were additional fees for meetings
and site visits. Paragraph 45 and following do not address the fee position where, as
here, there is a counterclaim.
20. The particular provisions of the MAP on which Mr Bowling relied for his new
submission were paragraphs 31-33, which provided as follows:
“31. The Adjudicator may resign at any time on giving notice
in writing to the Parties.
The Decision
32. The Adjudicator shall reach their decision within the time
limits in paragraph 21 above and issue the decision as soon as
possible after that. The Adjudicator shall be required to give
reasons unless both Parties agree at any time that the
Adjudicator shall not be required to give reasons.
33. If the Adjudicator fails to reach or issue a decision in
accordance with paragraph 32 above, the Adjudicator shall not
be entitled to any fees or expenses.”
21. Finally, there is the Scheme which also regulated Mr Davies’ rights and liabilities as
adjudicator, although only to the extent that its paragraphs did not clash with his own
terms and the MAP. The relevant paragraphs of the Scheme included the following:
(a) Paragraph 9:
“(1) An adjudicator may resign at any time on giving notice in writing to
the parties to the dispute.
(2) An adjudicator must resign where the dispute is the same or
substantially the same as one which has previously been referred to
adjudication, and a decision has been taken in that adjudication.
(3) Where an adjudicator ceases to act under paragraph 9(1) –
(a) the referring party may serve a fresh notice under paragraph 1 and
shall request an adjudicator to act in accordance with paragraphs 2 to
7; and

(b) if requested by the new adjudicator and insofar as it is reasonably
practicable, the parties shall supply him with copies of all documents
which they had made available to the previous adjudicator.
(4) Where an adjudicator resigns in the circumstances referred to in
paragraph (2), or where a dispute varies significantly from the dispute
referred to him in the referral notice and for that reason he is not
competent to decide it, the adjudicator shall be entitled to the payment of
such reasonable amount as he may determine by way of fees and expenses
reasonably incurred by him. Subject to any contractual provision pursuant
to section 108A(2) of the Act, the adjudicator may determine how the
payment is to be apportioned and the parties are jointly and severally
liable for any sum which remains outstanding following the making of
any such determination.”
(b) Paragraph 11:
"(1) The parties to a dispute may at any time agree to revoke the
appointment of the adjudicator. The adjudicator shall be entitled to the
payment of such reasonable amount as he may determine by way of fees
and expenses incurred by him. Subject to any contractual provision
pursuant to section 108A(2) of the Act, the adjudicator may determine
how the payment is to be apportioned and the parties are jointly and
severally liable for any sum which remains outstanding following the
making of any such determination.
(2) Where the revocation of the appointment is due to the default or
misconduct of the adjudicator, the parties shall not be liable to pay the
adjudicator's fees and expenses."
(c) Paragraph 12:
"The adjudicator shall –
(a) act impartially in carrying out his duties and shall do so in
accordance with any relevant terms of the contract and shall reach his
decision in accordance with the applicable law in relation to the
contract; and
(b) avoid incurring unnecessary expense."
(d) Paragraph 13:
"The adjudicator may take the initiative in ascertaining the facts and the
law necessary to determine the dispute, and shall decide on the procedure
to be followed in the adjudication….."
(e) Paragraph 20:
"The adjudicator shall decide the matters in dispute. He may take into
account any other matters which the parties to the dispute agree should
be within the scope of the adjudication or which are matters under the

UK Adjudicators February 2022 Newsletter

UK Adjudicators February 2022 Newsletter

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UK Adjudicators February 2022 Newsletter