HHJ Stephen Davies granted summary judgment in favour of the claimant adjudicator requiring the defendant to pay his fees which the defendant had refused to pay as it considered them excessive.

The defendants (the first defendant, Orca LGS Solutions Ltd and the second defendant, Stourport on Seven Care Ltd) to the action were involved in an adjudication against each other with the claimant, “the company through which the well-known adjudicator, Mr Peter Vinden” who was appointed as the adjudicator.

The adjudication lasted 58 days and the adjudicator took an agreed extended period to reach his decision. There were jurisdictional issues, substantial amounts of paperwork and the adjudicator also had a site visit. The adjudicator provided a reasoned decision, which ran to some 64 pages that was accompanied by a quantum breakdown. The adjudicator charged the parties just under £33,000 plus VAT in fees at an hourly rate of £285 per hour, for 114.5 hours work, which the parties did not pay. The adjudicator therefore brought this claim for payment of those fees. One party to the adjudication had already settled the adjudicator's claim, so the application for summary judgment proceeded only against the other party.

The court referred to HHJ Waksman's judgment in Fenice Investments Inc v Jerram Falkus Construction Ltd [2011] EWHC 1678 (TCC), noting that even if an adjudicator's appointment attempted to require payment without regard to the reasonableness of the fees, it would "take very clear words indeed to exclude the implied obligation that the fees charged should be reasonable”. HHJ Stephen Davies also noted that:

“where reasonableness is in issue then insofar as the adjudicator has provided details of his time spent … there is an evidential burden on the defendant to make out a prima facie case for unreasonableness and that the court should adopt a robust approach to this question, allowing the adjudicator a considerable margin of appreciation”.

And finally so far as time taken is concerned, “the adjudicator is given considerable discretion by the Scheme as to the procedure to be adopted and is also entitled to decide such matters as he or she considers necessary to decide in order to determine the dispute.”

On the facts, the court concluded that the time taken was reasonable and proportionate to the value and complexity of the claim.

This case reiterated the established approach by the TCC that the TCC should endeavour to determine such disputes without the need for a full trial, even if summary judgment is not appropriate. That approach has also been endorsed by Coulson J in his book Coulson on Construction Adjudication (third edition, Oxford University Press, 2015). The case also emphasises that whilst in most cases a term will be implied into an adjudicator’s appointment that his entitlement will be subject to reasonableness, the party disputing the fees will have a difficult evidential burden to discharge.