AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd

An adjudicator’s decision under the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts must be completed within 28 days or any agreed extension. The statutory timetable is mandatory because adjudication depends on speed and certainty.

However, a party may agree to an extension by silence and conduct. A party that participates in the adjudication in a manner inconsistent with reliance on the original deadline may be estopped from challenging the decision as late. The court enforced the decision where the adjudicator’s request for a further extension was accepted, or, alternatively, where the defendant was estopped from denying that acceptance.

Yule obtained an adjudicator’s decision requiring Speedwell to pay £191,661.42, interest and the adjudicator’s fees. The adjudicator initially had until 20 March 2007, extended by Yule’s agreement to 3 April 2007. He requested a further two-day extension after late material and responses were sought.

Yule expressly agreed to the further extension. Speedwell did not respond to the request, continued participating in the adjudication, provided late documentation and did not object when the adjudicator indicated that his decision would be issued on 4 April. The decision was issued that day. Speedwell argued that it was a nullity because it was out of time.

1. Enforcement. The adjudicator’s decision was enforced and judgment was entered for Yule under CPR Part 24.
2. Mandatory timetable. Paragraph 19 of the Scheme required the adjudicator to reach the decision within 28 days or any agreed extended period. The word “shall” imposed a mandatory obligation. A decision completed outside that period would be a nullity. The conclusion was consistent with the speed and certainty required by adjudication and with Ritchie Brothers (PWC) Ltd v David Philp (Commercials) [2005] BLR 384.
3. Agreement by silence and conduct. Where an adjudicator seeks a short extension to deal properly with late material, both parties must respond plainly and promptly. Speedwell’s silence, continued participation, provision of further material and failure to object to the proposed decision date amounted to agreement to an extension until 5 April 2007.
4. Estoppel. Alternatively, Speedwell was estopped from asserting that the decision was late. A reasonable person acting honestly and responsibly would have disclosed an objection to the extension. Speedwell’s conduct represented that the adjudicator had until 5 April, on which representation Yule and the adjudicator relied. The principles stated in The Stolt Loyalty [1993] 2 LLR 281 supported that conclusion.
5. The court declined to decide whether the decision had in fact been completed on 3 April or whether a late decision could nevertheless be enforced. It observed that the flexible statutory interpretation approach in R v Soneji [2006] 1 AC 340 was ill-suited to adjudication, where certainty of the timetable was paramount.