Mr Cartwright was an adjudicator in respect of a dispute between Miss Lydia Fay and Colonial Preservation & Construction Limited pursuant to a JCT Building Contract. He had been appointed by the RICS and had issued his terms and conditions to the parties. He apportioned his fee on a 50/50 basis, and issued an invoice on 13th March 2002 to both parties. Colonial Preservation & Construction Limited paid, but Miss Fay refused to pay on the basis that:

• The adjudicator was not entitled to claim a fee from Miss Fay because she was not a party to the contract;

• The adjudication rules were not incorporated into the contract;

• She was a consumer and could rely upon the Unfair Terms in Consumer Contract Regulations Act 1999; and

• He acted outside of his jurisdiction and was therefore not entitled to be paid.

District Judge Rutherford found that if the contract incorporated the adjudication rules, then the adjudicator could enforce the terms relating to payment of his fee based upon the Contracts (Rights of Third Parties) Act 1999 as there was no intention by either of the parties to the contract that those terms would not be enforceable by a third party adjudicator. Miss Fay had signed the contract and was therefore bound by it.

He then considered the Unfair Terms in Consumer Contracts Regulation Act 1999 and in particular question as to whether the adjudication provisions in the JCT Contract would lead to a significant imbalance between the parties. He came to the conclusion that the term was not an unfair term (applying D-G of Fair Trading v First National Bank [2002] 1 AC 481, Lord Bingham of Cornhill at page 494). Finally, the adjudicator was acting within his jurisdiction so was entitled to his fee. D J Rutherford therefore ordered the defendant to pay the fee, together with interest, the court fee and the expenses of the witnesses.

Many thanks to Ralph Wynne-Griffiths for kindly providing a transcript of this case.