Mclaughlin & Harvey Limited v LJJ Limited

An adjudicator’s statutory power to correct a clerical or typographical error is narrow. It permits correction of an accidental error in the expression or calculation of the adjudicator’s existing decision. It does not permit substantive reconsideration, the correction of an omitted matter, or the introduction of second thoughts following further submissions.

Where an adjudicator purports to exercise a power which the relevant statutory scheme does not confer, the resulting revision is outside jurisdiction and cannot supersede the original decision. Adjudicators’ decisions should generally be enforced, save in very exceptional circumstances. A party may rely on the original decision despite having proposed legitimate minor corrections in response to an invitation to identify clerical errors.

The claimant sought summary judgment enforcing an adjudicator’s decision dated 31 October 2023 requiring the defendant to pay £808,000 in Key Date damages under a construction sub-contract.

After inviting notification of clerical or typographical errors, the adjudicator received substantive factual and legal submissions from the defendant. He issued a Revised Decision adding words stating that the sum was payable only if it had not already been allowed.

The defendant argued that the Revised Decision superseded the original decision, that any error was within the adjudicator’s jurisdiction, that the claimant had approbated and reprobated, and that the Revised Decision could not be enforced.

1. Summary judgment granted. The claimant was entitled to enforce the adjudicator’s original decision dated 31 October 2023 for £808,000.
2. Paragraph 22A(1) of the Scheme for Construction Contracts 1998 permits correction of a clerical or typographical error arising by accident or omission. The power is confined to an error in expressing or calculating something already contained within the decision, such as an arithmetical mistake or mis-transposition. It does not permit correction of a substantive mistake of fact or law, a pure omission, or a change to the reasoned or intended basis of the decision.
3. The defendant’s correspondence contained substantive submissions about whether Key Date damages had previously been allowed. The adjudicator’s addition of the words “if not already allowed” qualified and clarified the operative decision. It was not the correction of a clerical error. The adjudicator therefore purported to exercise a power which he did not possess.
4. The distinction between exercising a jurisdiction wrongly and exercising a jurisdiction which does not exist is fact-sensitive. The principle in Lesotho Highlands Development Authority v Impregilo SpA required close attention to the particular power. The passage relied upon from O’Donnell Developments Limited v Build Ability Limited was obiter and did not determine the present case.
5. The doctrine of election did not prevent the claimant from enforcing the original decision. Proffering legitimate minor corrections in response to the adjudicator’s invitation did not amount to approbation and reprobation.
6. The question whether the defendant had already allowed the relevant sum could be pursued under the sub-contract, by arbitration, or in further adjudications. It was not a ground for resisting enforcement.

not stated in the judgment.