Epping Electrical Company Ltd v Briggs & Forrester (Plumbing Services) Ltd

An adjudicator’s decision is reached when the adjudicator has completed it, but the time for reaching it may be contractually extended on conditions agreed by the parties. Where consent to an extension is conditional upon issuing the decision by a specified date, failure to issue it by that date means that the extension is ineffective. The statutory time limit for reaching an adjudication decision under the Housing Grants, Construction and Regeneration Act 1996 is mandatory. A contractual provision purporting to preserve an adjudicator’s jurisdiction after expiry of that limit cannot prevail over the Act. The decision is therefore unenforceable if reached out of time, notwithstanding a contractual provision stating that a late decision remains effective.

The claimant, a sub-sub-contractor, applied under Part 24 of the Civil Procedure Rules for summary judgment to enforce an adjudicator’s decision requiring the defendant to pay substantial sums arising from construction-contract variations and related issues.

The adjudicator completed his decision on 21 November 2006 but withheld it pending payment of his fees and sent it to the parties on 23 November. The defendant had consented to an extension of time to 21 November, using wording referring to issuing the decision. The central issues were whether reaching a decision differed from delivering it, whether the extension was effective, and whether the contractual adjudication procedure could preserve the decision despite the statutory time limit.

1. Reaching and delivery. There is a distinction between an adjudicator reaching a decision and despatching or delivering it to the parties. The decision was completed on 21 November 2006. The issue was therefore whether the adjudicator had jurisdiction on that date. (para [12])
2. Construction of the extension. The defendant’s consent on 8 November was conditional upon the decision being issued by 21 November. The correspondence showed that both parties expected issue to follow immediately upon the decision being reached. Since the decision was not sent until 23 November, the condition was not fulfilled and the extension was ineffective. (paras [13]–[14])
3. Estoppel, acquiescence and waiver. The defendant was not estopped from relying on the ineffective extension. It had expressly reserved its position and had alerted the adjudicator, while there was still time, that the decision should be released. There was no sufficient evidence of reliance or conduct supporting estoppel, acquiescence or waiver. (para [15])
4. Mandatory statutory time limit. Following Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd [2005] BLR 384, the time limit under the statutory scheme was mandatory. The adjudicator’s jurisdiction ended when the applicable period expired without a valid extension. (paras [17]–[18])
5. Effect of the contractual procedure. Paragraph 25 of the CIC procedure could not make a late decision effective. Sections 108(2) and 108(5) of the Housing Grants, Construction and Regeneration Act 1996 required the statutory scheme to apply where the contractual provisions did not comply with the Act. Paragraph 25 was inconsistent with the mandatory provisions and could not survive alongside the Scheme. (para [19])
6. The adjudicator reached his decision seven days out of time. It was not enforceable and the claimant’s application was dismissed. (para [20]–[21])