Simons Construction Ltd. v Aardvark Developments Ltd.

An adjudicator’s failure to issue a decision within the contractual period does not automatically deprive the adjudicator of jurisdiction or make a later decision non-binding. The decision remains binding unless the adjudication agreement has been terminated for the delay or a fresh referral has been made before the decision is issued. A draft circulated for the parties’ unrestricted comment is provisional, rather than a concluded adjudication decision. The statutory adjudication timetable operates through contractual terms and does not itself prescribe a final cut-off date that invalidates a late decision.

Simons Construction Ltd. and Aardvark Developments Ltd. were parties to a building contract containing adjudication provisions. An adjudicator circulated a document entitled “Draft Decision” on 17 June 2002, inviting comments, and issued a signed “Final Decision” on 25 June 2002. Simons contended that neither document was an effective decision because the contractual deadline had expired. Aardvark sought declarations that the decisions were valid and enforceable. The central issues were whether the draft was a concluded decision and whether the later decision was binding despite being issued after the agreed deadline.

1. The Draft Decision was invalid as a concluded decision. Its description as a draft, absence of signature and date, and invitation for unrestricted comments showed that it was provisional. It was capable of being altered on the merits and was not analogous to a draft judgment inviting only linguistic corrections. Simons had not waived its right to object by failing to protest earlier.
2. The Final Decision remained binding. The relevant provisions of the Building Contract, the JCT Adjudication Agreement and the Scheme did not state that lateness deprived an adjudicator of jurisdiction or invalidated a decision. The adjudicator retained jurisdiction until the appointment was terminated or a fresh referral was made.
3. Paragraph 19 of the Scheme contemplated that, after a missed deadline, a party could issue a fresh referral and appoint a new adjudicator. That necessarily implied that the original adjudicator retained jurisdiction until a fresh referral was made. The parties’ obligation to comply with an adjudicator’s decision was unqualified by any requirement that it be issued by a particular date.
4. Time was nevertheless of the essence for the adjudicator’s contractual obligation. A failure to meet the applicable deadline could entitle either party to treat the breach as repudiatory and terminate the adjudication agreement. Neither party did so here, and no fresh referral was made before the Final Decision.
5. The court declared that the signed Final Decision dated 25 June 2002 was binding on Simons and Aardvark until the dispute was finally determined by arbitration, legal proceedings or written agreement.

Not stated in the judgment.