黑洞社区

This new Court of Appeal case is exciting. In my opinion it ought to be debated. In my opinion the debate should say: 鈥淭his house believes that in PC Harrington vs Systech International the judges have got it wrong鈥�. I ought to be invited to support the motion. In my opinion the principles enunciated about the adjudicator鈥檚 contract and the analysis of the Scheme for Construction Contracts is adrift. In my opinion I am a 鈥渢art鈥� because I can argue the other way. That鈥檚 my opinion.

What鈥檚 up? This high-level court says of the adjudicator鈥檚 promise in his contract: 鈥淭he bargained-for performance is to provide an enforceable decision.鈥� And he didn鈥檛, so he can鈥檛 have his fee. In my opinion that鈥檚 wrong. Instead the bargained-for performance from the adjudicator is to provide his/her opinion. And that鈥檚 my opinion.

What else is up? The adjudicator is said to have breached the rules of natural justice. In my opinion, he didn鈥檛 - he got the law wrong. And if he did get the law wrong, tough. If he did breach the rules of natural justice it was a procedural error, which in my opinion makes no odds. In any event, what do you expect when belting along at a million miles an hour? In my opinion, you expect mistakes and that鈥檚 what is bargained for.

What do you expect when belting along at a million miles an hour? In my opinion, you expect mistakes and that鈥檚 what is bargained for

So what鈥檚 the story? A labour-only ground-worker called Tyroddy did a load of work for PC Harrington Contractors. Five years later, Tyroddy whinged for his retention fund, and was ignored of course. So Tyroddy called for an adjudicator. Philip Doherty of Systech was appointed. Harrington鈥檚 defence was to say that the final account had to be sorted out before retention could be released.

The adjudicator said no to that. He decided the retention should have been released years before and that any dispute as to the final account was yet to crystallise, since all had been quiet for five years. And therefore the final account was out with this retention issue and inadmissible. He ordered the retention be paid.

Harrington didn鈥檛 pay. The High Court would not enforce, saying Doherty had acted unfairly, by not getting down to the final account. By now Tyroddy had gone out of business. And the adjudicator鈥檚 fee note from Systech had not been paid. So Systech sued Harrington. Mr Justice Akenhead ordered Harrington to pay up. The adjudicator鈥檚 contract with the parties, he said, was more than to produce an award, it was to carry out all the steps prior to making the decision. That was his opinion.

Harrington took that opinion to the Court of Appeal. Those three judges had the opposite opinion. They say an adjudicator鈥檚 ordinary promise is to 鈥減roduce an enforceable decision鈥�. So no fee is payable. I told you it was exciting, didn鈥檛 I?

Nothing in the act or the 鈥楽cheme鈥� says anything about 鈥榬esolving鈥� the dispute. That word was removed by Parliament

Bear in mind that we are talking here about the adjudicator鈥檚 contract with the parties. In short, what does he get paid for? It鈥檚 simply a question of the true nature of the adjudicator鈥檚 contract. His promise, in this case, was to reach his opinions by using the well-known 鈥淪cheme鈥� for adjudicating construction contracts, plus whatever of his own terms were accepted at the point of appointment. All he said in his terms was his rate per hour.

Now then, the 鈥淪cheme鈥� tells us what fee is payable in the event that the adjudicator does not reach a decision or his appointment is revoked. There is nothing anywhere that says no fee is payable when he does reach a decision but the decision is unenforceable. So the head judge in the Technology and Construction Court said the fee is payable for all the build-up work to the decision. The Court of Appeal said that鈥檚 wrong. Its reason is that the idea of adjudication is to produce a decision 鈥渨hich for the time being would resolve the dispute鈥�.

Nothing in the act or the 鈥淪cheme鈥� says anything about 鈥渞esolving鈥� the dispute. That word was removed by parliament. This is not a dispute resolution system. The system is, say the courts time and again, rough and ready and likely to result in injustice. You can鈥檛 have the grinding detail of litigation or arbitration. The system is highly likely to witness mistakes by the adjudicator. He/she has made no promise that the courts can enforce his/her mere opinions. And that鈥檚 my opinion.

Tony Bingham is a barrister and arbitrator at 3 Paper 黑洞社区s, Temple