This was an application initially for a declaration that the adjudicator was properly and validly appointed and had the necessary jurisdiction to decide the dispute. At the time of the application there was no adjudicator’s decision but subsequently the adjudicator provided a decision. Fleetglade contended that the decision was reached out of time and was a nullity.

Cubitt was engaged by Fleetglade as contractors to carry out superstructure works under an amended JCT 1998 contract. PSP were the architects and quantity surveyors named in the Contract. PSP issued a final certificate. On 20 September 2006, Fleetglade issued a notice of arbitration and on the same day Cubitt served a notice of intention to refer a dispute or difference to adjudication. Cubitt wrote to the ANB, RICS, on 21 September seeking the nomination of an adjudicator. An adjudicator was not appointed until 27 September 2006. Late on 27 September, the representing parties spoke on telephone and Cubitt’s solicitor offered Fleetglade’s solicitor the referral notice, but without the accompanying documents. This offer was refused. Cubitt referred to dispute to the adjudicator on 28 September 2006. On 3 October Fleetglade’s solicitor took the point in writing that the referral was not served within 7 days of the notice and that therefore the adjudicator had no jurisdiction. Because of the operation of the relevant contractual provisions, Cubitt had lost the right to object to the final account at this time and therefore the solicitor had to continue with the adjudication.

Fleetglade refused to confirm that all of the issues covered in the adjudication notice were encompassed in their own notice of arbitration. The time for the adjudicator to make his decision was extended until 24 November and the decision was sent out by email on 25 November.

His Honour Justice Coulson QC enforced the adjudicator’s decision. He agreed with the proposition that if the contractual adjudication provisions comply with the Act, then they must be at the forefront of the court’s consideration of the respective parties’ rights and liabilities. He commented that in some of the reported cases, the focus had been too much on the 1996 Act and not enough on the relevant terms of the contract.

His Honour noted that Clause 41A of the JCT contract expressly recognised that an adjudicator may not be appointed until after the seven day period has expired and he considered that the words of this clause were mandatory. The effective date of the notice was held to be 20 September 2006. However, the Referral Notice was not a nullity. Clause 41A of the JCT has to be operated in a sensible and commercial way. A sensible interpretation of Clause 41A is that if the appointment of the adjudicator happens late on Day 7, the referral notice must be served as soon as possible therefore, and if that means it is served on Day 8, then service on Day 8 would be in accordance with Clause 41A. His Honour stated that it would be contrary to business commonsense to rule that the provision of the referral notice in this case was out of time. Although Clause 41A set out a mandatory timetable, it is a timetable that needs to be operated in a sensible and businesslike way. Therefore the Referral Notice was validly provided in accordance with the contract and the adjudicator had the necessary jurisdiction.

Regarding the decision, His Honour held that the decision was validly reached. The adjudicator had provided a witness statement stating that he had concluded his findings by approximately 1700 hours on the 23 November 2006. On 24 November 2006 at 10.45pm, the adjudicator sent an email advising the parties that he had completed his decision but it still needed to be checked and proofed and he invited the parties submissions as to whether they would be in a position to settle his invoice, as he proposed to exercise a lien.

After reviewing the relevant caselaw, His Honour held that the decision in Ritchie seems to be right and he derived the following four principles:

1. There is a two-stage process involved in an adjudicator’s decision, which is expressly identified in Clause 41A. Stage 1 is the completion of the decision. Stage 2 is the communication of that decision to the parties, which must be done forthwith.
2. An adjudicator is bound to reach his decision within 28 days or any agreed extended date.
3. A decision which is not reached within 28 days or any agreed extended date is probably a nullity.
4. A decision which is reached within the 28 days or an agreed extended period, but which is not communicated until after the expiry of that period will be valid, provided always that it can be shown that the decision was communicated forthwith.

Accordingly, as the adjudicator’s decision was dated 24 November 2006, it was dated the last day of the agreed extended period and the fact it was sent out 12.5 hours later suggests it was completed on 24 November.

Regarding the adjudicator’s lien, the adjudicator’s term of appointment to exercise the lien was not consistent with Clause 41A as it envisages a potential delay, which could be lengthy, between the completion of the decision and its communication to the parties whilst arrangements were made in respect of the payment of his fees. It is also contrary to Section 108 of the Act. His Honour suggested that such an open-ended extension of the kind envisaged by the adjudicator is contrary to the whole principle of adjudication as described in the Act. His Honour agreed with the case of St Andrew’s Bay Development Ltd v HBG Management Ltd and stated that the adjudicator was not entitled to exercise a lien either as a matter of contract or as a matter of law.

His Honour commented that it should not be necessary for the parties and the court to have to work through evidence to see whether or not the decision was completed by the deadline. Adjudicators have an obligation to complete their decisions within the time allowed by the parties. The safest thing for an adjudicator to do, if the decision has reached the final extended date, is to email that decision during that final day.