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Oh for heaven鈥檚 sake! Three times the adjudicator said he would serve up his award on 19 January. And when it came to the parties bang on the 19th, the loser said it was outside the 28-day timetable and therefore a nullity. So 鈥渃ock-a-doodle-doo鈥� crowed the loser: we won鈥檛 pay.

The fight was between Sterling 好色先生TV Company and Letchworth Roofing. At the end of it, the adjudicator awarded the roofer 拢47k. And Sterling was right, the award rolled in after the 28th day. But their argument was hopeless, said the judge. When the adjudicator said it would come on the 19th, neither party whinged. Now, you can鈥檛 keep the whinge up your sleeve and run it once you鈥檝e lost. Truth to tell, some arguments to resist the effect of an award are not worth powder and shot.

Sterling ran another point, which is more interesting. There is a developing line of adjudication cases where the respondent serves up a defence full of brand spanking new arguments in the form of hitherto unmentioned ideas for counterclaiming cash from the referring party. That lot arrives on day seven of the 28-day 100-miles-an-hour dash. The remaining 21 days are supposed to belong to the adjudicator. It鈥檚 his time. That鈥檚 for him to adjudicate the referral bumf and respondent bumf. But he can鈥檛 even begin, if the response has a kit-bag full of new arguments. Let me come back to all that. Let鈥檚 look at the Letchworth case.

The judge is not saying you can run any defence you like. He is saying you can run any defence to the claim with which the adjudicator is dealing

The main contract was for roofing work at South Hill Church, Hemel Hempstead. Sterling sublet the task to Letchworth. There was a quarrel about 拢56k. Letchworth called for

the adjudicator. He delivered his award. The dispute identified in the notice of adjudication was Letchworth鈥檚 interim account for gross 拢117k. Sterling raised a cross-claim for delay. Letchworth said in its notice that the issue was 鈥渨hether a valid notice of withholding was in place鈥�. If it was not, it is all over and goodnight for Sterling. So, Sterling argued that irrespective of the want of a withholding notice, it had a good argument for late completion and therefore damages. Sterling said it could run any defence it liked. And I can tell you that I keep seeing that type of mentality coming into adjudications. If it is right, it is a nightmare.

Folk keep pointing to a case last year called Cantillon vs Urvasco and using it to make a mountain out of a molehill. In it, one party tried, unsuccessfully, to upset the adjudicator鈥檚 award. The judge explained what can be allowed into a response. 鈥淚t includes and allows for any ground open to the responding party that would amount in law or fact to a defence of the claim.鈥� Well, well, says many a respondent, and brings into his defence his pots and pans. Then they point to something else the judge said: 鈥淚n my view, one should look at the essential claim that has been made and the fact that it has been challenged as opposed to the precise grounds upon which it has been rejected. Thus it is open to any defendant to raise any defence. Similarly, the claiming party is not limited to the arguments, contentions and evidence put forward before the dispute crystallised. The adjudicator or arbitrator must then resolve the referred dispute, which is essentially the challenged claim or assertion but can consider any argument, evidence or other material.鈥� Take great care with all this. The judge is not saying you can run any defence you like. He is saying you can run any defence to the claim with which the adjudicator is 鈥渄ealing鈥�. He is only dealing with the dispute in the notice.

I can tell you that i keep seeing that type of mentality coming into adjudications. If it is right, it is a nightmare

So, in the Letchworth case the dispute with which the adjudicator was dealing was whether there was a valid withholding notice. It is open to the respondent to argue that issue only. In this case, the adjudicator did his job and that鈥檚 that. Pay up.

It鈥檚 all very well to allow in any argument when the issue in the notice of adjudication is an 鈥渆asy鈥� one, such as whether Tuesday follows Monday. Most adjudications are more complex and 鈥渘ew stuff鈥� is, as I said, a reliable nightmare. The legislation aims to get all done in 28 days. There is no chance of that if anything can come in that鈥檚 brand new. Yes, yes, I know that鈥檚 what we do in litigation when no time limits apply. But adjudication is a 28-day game. Very different.

Credit: Simone Lia