R.G.Carter Ltd v Edmund Nuttall [2002] HT-02-121

This summary was provided by CMS Cameron McKenna LLP.

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The Court has no power to revoke the appointment of an adjudicator or to appoint a new adjudicator in his place. At most the Court will make a declaration as to the validity of an adjudicator's appointment.

Judge Bowsher QC

18 April 2002, TCC

R entered into a sub-contract with E incorporating the DOM/1 provisions in about September 1999 for the construction of concrete works to the sub-structure and the building frame and ancillary works for a new Heritage Centre and Library in Norwich. The sub-contract contained contractual provisions for adjudication that complied with the requirements of HGCRA 1996.

Between July 2000 and November 2001 there were three adjudications. A fourth dispute then arose about extensions of time and claims for loss and expense arising out of delay. An adjudicator, Mr David Richards of Mouchel Consulting Limited, was appointed in December 2001. On 1 February 2002 he published his decision: that substantial sums of money, totalling well over £1 million were payable to R. R issued a claim form to enforce payment through the court on 20 February 2002. The case was heard by His Honour Judge Seymour QC. The issue arose as to what was a dispute for the purposes of adjudication. On 21 March 2002 Judge Seymour held that the fourth adjudication had not concerned a "dispute" and therefore Mr Richards had no jurisdiction to make his decision of 1 February 2002 and that decision was unenforceable.

On the same day as Judge Seymour gave judgment, 21 March 2002, R gave notice of adjudication of disputes that covered some of the same issues as the fourth adjudication. R specifically asked that the adjudicator be someone other than Mr Richards. Despite this RICS appointed Mr Richards.

R applied to the court to revoke the appointment on the grounds that (a) Mr Richards had been prejudiced in the fourth adjudication and would be prejudiced in this fifth adjudication as well and (b) Mr Richard's appointment contravened R's rights under the Human Rights Act, 1998. R further claimed that another adjudicator should be appointed in respect of the dispute and that R should be granted an extension of time to serve its referral notice pending the appointment of an adjudicator. E had indicated that they were prepared to agree to an extension of time but after the hearing they withdrew this statement.

The judge concluded that:

  1. he had no jurisdiction to revoke Mr Richards' appointment on the grounds of bias and, in any event, there were no legitimate reasons for alleging bias;
  2. the Human Rights Act 1998 does not apply to decisions by adjudicators;
  3. he had no jurisdiction to order that another person be appointed as adjudicator and in any event would not make such an order; and
  4. the court does not have jurisdiction to grant an extension of time for service of any required documents by a party to an adjudication.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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