A notice of adjudication was issued on 10 June 2004. On 6 July, the claimants served its response. On 7 July the defendant accepted that the adjudicator did not have jurisdiction. The adjudication was discontinued and the defendant paid the adjudicator鈥檚 account.
The claimant then asked the adjudicator for a decision that the defendant should pay the claimant鈥檚 costs. Clause 9.2 of the RIBA in addition to the engagement for the appointment of an architect (CE/99) that was applicable to the contract between the parties incorporated the model adjudication procedure published by the Construction Industry Council. Clause 29 had been amended allowing the adjudicator discretion to decide that one party may pay the other鈥檚 legal fees and expenses 鈥渁s part of his decision鈥�. On 12 November, the adjudicator issued a decision that the claimant鈥檚 costs were 拢87,131.04 and that the adjudicator鈥檚 further fee in assessing costs was 拢14,643.44 and that the defendant should pay those amounts.
The claimant relied on Amended Clause 29, and on the implied term that the adjudicator should have power to order the payment of costs.
Was the defendant was liable to pay the costs awarded by the adjudicator?
Reference
Judge Havery held that the general position was that an adjudicator did not have the power to award costs, however Amended Clause 9 provided that the adjudicator could in this instance award costs. However, those costs were to be awarded as a 鈥減art of his decision鈥�. No decision had been issued because the adjudication had been discontinued. An implied term would only be incorporated if strictly required, and in this case it was not. The decision was therefore not enforceable and the claimants dismissed.
*Full case details
John Roberts Architects vs Parkcare Homes (No. 2) Ltd
High Court of Justice (Queens Bench Divison), HHJ Richard Havery QC [2005] EWHC 1637 (TCC)
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
Postscript
The adjudicator had no jurisdiction to make a decision that any party pay legal costs or further fees. This was because the adjudication had been discontinued, and so the adjudicator no longer had any jurisdiction. His fee had been paid and the matter had been closed. It may have been different if the claimant had asked for a decision that legal costs be paid to them and that the fee be paid by the defendant rather than allowing the adjudication simply to be discontinued. Once an adjudication has commenced, the only ways to bring it to a close is for a decision to be issued, the adjudicator to resign or both parties to consent to discontinuing the adjudication.
