Mott McDonald Limited v London & Regional Properties Ltd
Case reference:
[2007] EWHC 1055 (TCC)
Wednesday, 23 May 2007
Key terms: Enforcement - Consultancy Services - Formal Agreement - Set-off - In Writing - Section 107 - Lien - Time for decision - delivery of decision
Mott MacDonald was providing specialist engineering multi-disciplinary services to London and Regional Properties. A dispute arose in respect of fees.
The enforcement of the Adjudicator's Decision was challenged on the basis that he lacked jurisdiction initially and then did not deliver his decision within the strict timetable required by the Act. The main issues were whether there was a construction contract evidenced in writing, whether the adjudicator could impose a lien, whether the adjudicator reached his decision and the time for delivery.
HHJ Thornton QC gave strong guidance that adjudicators should not enforce liens over their decisions. His Honour stated that an adjudicator is required to comply with the relevant terms of the construction contract and the Scheme rules. The Scheme requires that the adjudicator's decision, with reasons if requested, must be delivered to the parties as soon as possible after he has reached his decision: Rule 19(3). It followed, therefore that an adjudicator may not impose a lien on his decision or reasons and not deliver it pending the payment of his fees. His Honour stated that this was because the adjudicator was restricting himself from complying with his obligation to deliver these documents as soon as possible after he reached his decision.
Further, the adjudicator appeared to lack impartiality in making it a condition of his appointment that his fees would first have to be paid by the referring party before he delivered his decision to the parties and by then appearing to enforce that pre-condition. The adjudicator should not be or appear to be financially beholden to one party, particularly the referring party, or place himself in the position in which he might appear to be more partial to one side than the other.
The enforcement of the Adjudicator's Decision was challenged on the basis that he lacked jurisdiction initially and then did not deliver his decision within the strict timetable required by the Act. The main issues were whether there was a construction contract evidenced in writing, whether the adjudicator could impose a lien, whether the adjudicator reached his decision and the time for delivery.
HHJ Thornton QC gave strong guidance that adjudicators should not enforce liens over their decisions. His Honour stated that an adjudicator is required to comply with the relevant terms of the construction contract and the Scheme rules. The Scheme requires that the adjudicator's decision, with reasons if requested, must be delivered to the parties as soon as possible after he has reached his decision: Rule 19(3). It followed, therefore that an adjudicator may not impose a lien on his decision or reasons and not deliver it pending the payment of his fees. His Honour stated that this was because the adjudicator was restricting himself from complying with his obligation to deliver these documents as soon as possible after he reached his decision.
Further, the adjudicator appeared to lack impartiality in making it a condition of his appointment that his fees would first have to be paid by the referring party before he delivered his decision to the parties and by then appearing to enforce that pre-condition. The adjudicator should not be or appear to be financially beholden to one party, particularly the referring party, or place himself in the position in which he might appear to be more partial to one side than the other.