Baldwin & Anor v Pickstock Ltd

Under the Scheme for Construction Contracts, an adjudicator’s appointment is time-limited. The power to resign “at any time” ends when the applicable deadline for reaching a decision expires, subject to any agreed extension. An appointment may therefore lapse by effluxion of time.

In the particular context of adjudication, a party’s silence or conduct may amount to acquiescence in a proportionate extension, especially where that party caused or contributed to the need for more time. Acquiescence cannot give an adjudicator a unilateral power to extend the decision period. A resignation after the appointment has lapsed is ineffective and cannot trigger a contractual entitlement to fees.

Frederick Dennis Baldwin acted as adjudicator in a dispute between J R Pickstock Ltd and an electrical contractor. His appointment was governed by the Scheme for Construction Contracts and his standard terms, under which the referring party was liable for fees if he resigned before reaching his decision because of a valid jurisdictional challenge.

The adjudicator sought successive extensions. Pickstock expressly agreed to an earlier extension, remained silent when a further extension was requested, and later refused to agree to the proposed date. The adjudicator then purported to resign and his company claimed £28,303.92 in fees and expenses. The central questions were whether the appointment had continued, whether Pickstock’s conduct amounted to acquiescence, and whether the contractual resignation clause had been validly invoked.

1. Construction of the Scheme. Applying the approach in Arnold v Britton [2015] UKSC 36, the phrase “at any time” in paragraph 9(1) had to be read in its documentary, factual and commercial context. The purpose of the Scheme was the speedy and time-limited resolution of construction disputes.
2. Paragraph 19, together with paragraph 22A and the short period allowed for delivery of a decision reached in time, imposed longstop limits on the adjudicator’s appointment. If the adjudicator failed to reach a decision within the permitted or agreed period, the appointment lapsed by effluxion of time. Paragraph 19(2) supported that conclusion because it enabled a party to appoint a new adjudicator.
3. Acquiescence. The TCC authorities, including AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360 (TCC) and KNN Coburn LLP v GD City Holdings Ltd [2013] EWHC 2879 (TCC), established that silence or participation may induce an adjudicator reasonably to believe that a proportionate extension is accepted. That principle assists in validating a continued appointment, but does not confer a unilateral power to extend time.
4. Pickstock’s conduct amounted to agreement to an extension until 7 June 2016. Nevertheless, by the end of that date Pickstock had clearly refused any further extension, and the adjudicator had no basis for believing that the deadline would continue. His appointment therefore lapsed on 7 June. The purported resignation on 9 June was invalid because there was nothing left from which to resign.
5. The claim for fees and expenses accordingly failed. Had the adjudicator resigned on 7 June, the result would have been different.