Faithful & Gould Ltd v Arcal Ltd [2001] Case No: E190023 TCC

This summary was provided by CMS Cameron McKenna LLP.

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

An adjudicator must be a natural person acting in his personal capacity, however, there is no rule which says he must sue for his fees in his own name.

Technology and Construction Court (Newcastle Upon Tyne District Registry)

25 May 2001

Two applications were heard: the first related to the Defendants' contention that the Claimant's claim should be struck out as disclosing no cause of action. Their case was that the adjudicator, G, sued for his fees under the name of the company where he was employed rather than in his personal capacity and the role of an adjudicator must be carried out by an individual. The judge rejected this, seeing no reason why G, who happened to work in a company that administered his fees, should have to sue for his fees in a personal capacity. The application to strike out was dismissed.

The second application was brought by the Claimant for summary judgment on its claim for the fees of the adjudicator, G. There had been two previous attempts at adjudication of the matter with another adjudicator who was not paid and therefore refused to deliver his award. As a result G sought assurances that his fees would be paid personally by the Defendants; the Defendants agreed to be bound by G's decision but did not positively affirm they would pay him. G did not award anything and ordered the first Defendant (A) to pay his costs.

The Defendants contended that the Chartered Surveyor (K) appointed by A to conduct the adjudication was not an agent of the 2nd and 3rd Defendants (who were A's receivers) and thus had no authority to bind them to pay any fees to G. The court held however that correspondence showed that K issued the Notice of Adjudication on behalf of A and K believed he was acting as agent for all of the Defendants. It was found that if there was any doubt as to whether there was an agreed agency, there was an agreement by conduct and the Defendants would be estopped from denying the authority of K (Brogden v Metropolitan Railway (1877) LAC 666 applied.)

Judgment was given for the Claimant for the amount of G's adjudication fees and costs were awarded against the Defendants on an indemnity basis.

An adjudicator must be a natural person acting in his personal capacity, however, there is no rule which says he must sue for his fees in his own name.

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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