PP Construction Ltd v Geoffrey Osborne Ltd (TCC - 17.2.2015)

Objective test to determine whether an effective request was made to the adjudicator for the correction of an accidental error made by him within the meaning of the clause

Technology and Construction Court
Stuart-Smith J


17th February 2015

The Construction Act and the Scheme for Construction Contracts provide for the correction of accidental errors in decisions
However, the parties are free to agree different terms for such correction in their adjudication clause if they so wish. For example the rules make provision for the adjudicator to make such a correction not only on the adjudicator’s own initiative but if one of the parties makes a request for him to do so. This case concerned a bespoke adjudication clause in which a party could do so. The clause provided that the adjudicator could on his own initiative or at the request of either party correct his decision so as to remove any clerical mistake, error or ambiguity provided that such initiative was taken or such request was made within 14 days of the notification of his decision to the parties.
Stuart-Smith J, in determining whether the responding party had made an effective request in the circumstances of the case set out some general principles as to when the request will be valid and concluded that the request must identify the error with sufficient clarity that a reasonable adjudicator should be able to understand what that error is, why it is an error and what alteration is required.
The judge went on to state that it was properly submitted that in order to qualify as a "request", it must identify the clerical mistake that is the subject of the request and request the adjudicator to correct it. It was also submitted that the court in deciding whether an effective request had been made should adopt an objective interpretation of the materials said to constitute the request and should not adopt a subjective approach based on whether the adjudicator recognised that what he received was meant to be and was an operative request. There was force in this submission since a definition of "request" that required the court to investigate the qualifications, abilities and understandings of the adjudicator seems undesirable. The better approach is that an effective request must identify the clerical error with sufficient clarity that a reasonable adjudicator who holds himself out as competent to deal with the adjudication in hand should be able to understand precisely (i) Where in his adjudication he has made a clerical error (ii) What that error is (iii) Why it is an error and (iv) What alteration is required.