The parties’ subcontract incorporated the CIC Model Adjudication Procedure, but with an amendment that the party serving the notice of adjudication was to bear all the costs and expenses incurred by both parties in relation to the adjudication, including but not limited to all legal and expert fees.

Bridgeway sought a declaration that the amendments were void on the ground that they had the effect of inhibiting the parties from pursuing their remedies under the Act. Tolent argued that the clauses were not void and unfair as they applied to both parties and were part of a procedure which adopted the Act. The clauses referred to the matter of costs, an issue on which the Act was silent.

HHJ Mackay upheld the contract terms. The amendments were alterations to a CIC Model Procedure and not to any Act of Parliament. There was nothing to prevent parties from making their own contractual arrangements as to who was to bear the costs of any adjudication notwithstanding the outcome of the adjudication. They were not unfair as they applied to both parties. Bridgeway had argued matters before the Adjudicator on the principle as to who should pay and who should not pay, so they were bound by the adjudication. The parties had given the Adjudicator the right to determine such issues and they were bound by his determination.