Stubbs Rich Architects-v- W H Tolley & Son Limited
The contractor's claim against the adjudicator (an architect) for the repayment of part of his fees (which the contractor paid in full subject to protest) on the ground that the number of hours he took was excessive failed
9 August, 2001
The adjudicator was an architect. An adjudication agreement was concluded between the parties to the adjudication and the adjudicator which provided for the adjudicator to be remunerated on the terms of the agreement. The adjudicator published his decisions and enclosed notes of his fees as part of the decisions. One of the parties, the contractor, paid the adjudicator's fee is in full, in its words, "under duress" on the ground that the number of hours claimed was excessive. The contractor issued a claim to recover the alleged overpayment it had made in respect of the adjudicator's fees. The contractor was ordered to clarify its case by serving a report from an independent architect upon which it intended to rely as showing that the hours spent by the adjudicator were unreasonably excessive. Mr Recorder Lane QC on appeal held that the contractor's claim against the adjudicator for the repayment of part of his fees should fail. This was on the basis that he had not done or omitted to do anything in bad faith and that there was no factual material to indicate that the number of hours was excessive. The agreement between the adjudicator and the parties to the adjudication provided that the adjudicator was not be liable for anything done or omitted in the (purported) discharge of his functions unless done or omitted in bad faith. The terms of this agreement should be given their ordinary and natural meaning with the result that the adjudicator's fees (which were included as part of his decision) should be regarded as part of ?anything done or omitted? by the adjudicator. There was no suggestion by the contractor that the adjudicator had done anything in bad faith (and was therefore guilty of misconduct). In addition the contractor failed to produce evidence in the form of a report by an independent architectural expert despite the court's invitation for the contractor to do so and in the absence of such evidence the judge at first instance correctly applied the criterion of the reasonably competent solicitor, ie how long it would take the solicitor to read the files in the instant case and to write a decision. Advice Note In order to sustain a contention that an adjudicator has taken an excessive number of hours, it is important to produce a report from an independent professional to support the contention by way of evidence.