Axis M&E UK Ltd & Anor v Multiplex Construction Europe Ltd

An adjudicator may correct a decision under the statutory slip rule where the correction removes a clerical or arithmetical error and gives effect to the adjudicator’s original determination. The rule does not permit second thoughts or a change to the substantive reasoning. Where a permissible correction is made, the adjudicator may also make consequential corrections needed to produce an internally consistent decision, including consequential interest or costs directions. Adjudicators’ decisions should generally be enforced, subject to exceptional cases.

The claim concerned enforcement of an adjudicator’s decision arising from a construction subcontract dispute about variation valuations, contra-charges and the resulting amount payable. The adjudicator’s original calculation deducted contra-charges twice and concluded that no sum was due. Within the permitted period, he issued an amended decision correcting the calculation and awarding £654,119.65, including interest.

The defendant argued that the amendment exceeded the slip rule in paragraph 22A of the Scheme for Construction Contracts. The central issue was whether the correction was a permissible clerical or typographical correction and, if so, whether consequential amendments could also be made.

1. Enforcement. Summary judgment was granted for the principal sum of £643,072.89 and interest of £11,046.76, making £654,119.65 in total.
2. The court should begin by identifying the dispute referred to adjudication and the dispute which the adjudicator understood himself to decide. The adjudicator had determined the proper value of the variations and the proper amount of contra-charges. Once those issues had been resolved, the resulting payment was a matter of arithmetic or mechanics. The approach in Rok Building Ltd v Celtic Composting Systems Ltd [2009] EWHC 2664 (TCC) was accepted and applied.
3. The error consisted of deducting the adjudicator’s own contra-charge valuation from a figure which already included the defendant’s earlier contra-charge deduction. It was an arithmetical error of the kind falling within paragraph 22A of the Scheme for Construction Contracts, consistent with the description in NKT Cables A/S v SP Power Systems Ltd [2017] CSOH 38. The correction gave effect to the adjudicator’s original decision on the substantive issues, rather than to second thoughts.
4. Once the gateway error was permissibly corrected, consequential corrections could also be made. The reasoning in Gannet Shipping Ltd v Eastrade Commodities Ltd [2001] All ER (D) 74 (Dec) was applied by analogy. Correcting the principal figure permitted, and in the interests of internal consistency required, the consequential award of interest. The adjudicator therefore acted within his jurisdiction.
5. No further order was required concerning the adjudicator’s fees, which had already been paid.