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How much money does enforcement cost? Glibly we talk on this page about popping along to the High Court and asking the odd judge to 鈥渕ake the other bloke obey the very nice adjudicator鈥檚 award鈥�, or asking the same judge 鈥渢o sling out the half-baked numbskull adjudicator鈥檚 silly award鈥�. That鈥檚 all very well, but how much does all this popping along cost? There is a good example in a case called BAL (1996) Ltd vs Taylor Woodrow Construction Ltd. Let me tell you the story.

Nationwide Anglia Property Services鈥� headquarters at Swindon needed remedial works. Taylor Woodrow was appointed main contractor and BAL, trading as BACO Contracts, tendered 拢3.5m for the subcontract package on the glazing over four phases. Nationwide used a letter of intent to proceed. So, Taylor Woodrow did the same with BACO (BAL). The form used was the Taywood subcontract package with the letter of intent bolted on the side to allow a 鈥渂it-by-bit鈥� contract. Eventually a list of quarrels accumulated, so BACO called for an adjudicator. By then the authorised spend was 拢2.2m. BACO鈥檚 account however was at 拢2.8m. Dear me, said Taywood, where did you, Mr BACO, get the right to go over the cap in the bit-by-bit release? Tricky issue for the QS adjudicator.

He held a meeting. Barristers turned up to explain the effect of the 拢2.2m cap. Not cheap. On top of that there was the list of quarrels regarding the measured account, variations, loss and expense. Another meeting was required for all that. Surveyors turned up. Not cheap, either. Meanwhile, flummoxed by lawyers鈥� arguments about the cap, the adjudicator sought 鈥渓egal assistance from my own source鈥�. He spent four hours with a solicitor and, two days later, another four hours with a barrister. Not at all cheap.

At last the adjudicator issued his formal binding decision. The subcontractor, he said, had been prevented from completing on time, was asked to undertake significant additional work and should be paid. As for the 鈥渃ap argument鈥�, he decided that said cap had fallen off when Taywood piled on the work. Right or wrong, it is not for the court to inquire into his findings of fact or law. The decision is binding until the dispute comes up for a full trial. Taylor Woodrow was supposed to pay up. Except for one snag. Can you spot it?

The adjudicator hadn鈥檛 reported the advice he received from the lawyer sources. This is a mortal sin for an adjudicator. You can see why. If the adjudicator obtains advice as to whether BACO鈥檚 or Taywood鈥檚 barrister gave the right explanation of the law, the advice has to be put to the parties. Worse still, the 鈥減rivate鈥� advice from the lawyers to the adjudicator might raise a fresh point not discussed by the parties and introduce an argument not on the original list of arguments. This mortal sin consigned the adjudicator鈥檚 award to the skip. By the way, the entire list of arguments went down the pan, even those that had not required legal advice.

So what about the costs? BACO鈥檚 legal costs in coming to enforcement in the High Court were 拢20,000 plus. Taywood鈥檚 were 拢13,000 plus. The court awarded Taywood nearly all of that. So the popping along to the High Court cost the loser 拢33,000. Well, no, actually it didn鈥檛. It was a damn sight more. Let鈥檚 work it out. The adjudicator鈥檚 fees were thrown away 鈥� another 拢8264. Then there were the fees of the lawyers it consulted. Is that it? No, not quite. Thrown away, too, was all that it cost BACO to run the adjudication. Thrown away, too, was all that it cost Taywood to run the adjudication. We can only guess what that little lot came to. 拢50k? 拢60k? 拢70k? And remember BACO walked away from the adjudication and the court with none of the cash awarded to it.

So the popping along to the High Court cost the loser 拢33,000. Well, no, actually it didn't. It was a damn sight more. Let's work it out ...

No, I am not 鈥済etting at鈥� the adjudicator. He is a good chap who according to the court made a mistake in the procedure. He ought to have published to the parties the advice he obtained. The end result, had he done that, may have been no different to what his award now said.

But, we can鈥檛 take that chance can we? And let me say this: can I have this same adjudicator in my next dispute please? Because he won鈥檛 make that mistake ever again. But others will 鈥�

拢70k a pop

Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper 好色先生TVs, Temple, London EC4 7EY, or email him on info@tonybingham.co.uk