ENTERPRISE MANAGED SERVICES LTD V TONY MCFADDEN UTILITIES LTD
Technology and Construction Court
2 December 2009
It was immediately clear to everyone that the sub-contractor's assignee's disputed final account claim was very extensive, complex and paper heavy and could not be addressed within the 28 day period for the adjudication process under the Construction Act. The adjudicator failed to ask himself at the outset whether he could discharge his duty to reach a decision impartially and fairly within that time. Whilst there would have been no difficulty if the parties had agreed at the outset that the adjudicator's time for his decision should be substantially extended, the piecemeal extensions of time asked for by the adjudicator and granted by the parties (albeit reluctantly in the case of the replacement contractor) was not what the Construction Act was designed for. Whilst the adjudicator was right to say that he could not make a binding decision on his own jurisdiction in relation to the jurisdiction points raised by the replacement contractor, he ought to have outlined his conclusions as to jurisdiction when the points were first raised and if he had done so, he would have also seen how important it was for him to decide at the outset whether or not the claim could be dealt with fairly under the summary adjudication process. Resignation would have obviously saved a good deal of time and money, not least the costs of the court proceedings brought by the replacement contractor for declarations.