Comment The findings at (2) and (3) appear to be just and unsurprising though they may cause some adjudicators to review their terms. The more interesting question surrounds finding (1). Is it possible for a responding party who raises jurisdictional issues but wishes to take part under a reservation of rights, to protect himself from liability for the adjudicator’s fees and if so how? He would, as a minimum, have to make it clear to the adjudicator that he does not accept the adjudicator’s agreement or terms or liability for his fees, whatever the outcome. He will also need to be careful that he says and does nothing to imply that he is looking to the adjudicator to do anything other than resign. If the adjudicator does not resign and he continues to participate and to address the adjudicator on say the underlying merits, it is difficult to see how he can later say that he did not require the adjudicator to heed, take into account and act on his communications or submissions or to make a determination. The question is then whether the implied liability for fees by reason of the strong fact of participation trumps the express denial of the existence of a contract or liability for payment. Despite the conflicting considerations, policy might dictate that a party that participates cannot absolve himself of responsibility for the cost to the adjudicator of dealing with the issues he has raised. 3. Adjudicator’s fees — whether fees must be reasonable and how is reasonableness resolved See The Vinden Partnership Ltd v Orca LGS Solutions Ltd and another 8 An adjudicator is not entitled to payment of his fees without consideration of their reasonableness, following the decision of HHJ Waksman in a similar case. An express obligation to pay charge without qualification by reference to their reasonableness was not sufficient to exclude the implied obligation that the fees should be reasonable in all the circumstances. The requirement could not be negated except by very clear words in the contract (appointing the adjudicator). Where reasonableness was an issue, and insofar as the adjudicator has provided details of the time spent, the evidential burden to make out a prima facie case of unreasonableness was on the party challenging the fees. The Court should adopt a robust approach to the question and allow the adjudicator a considerable margin of appreciation given the speed at which and the pressure under which the adjudicator was expected to work. The Court should be careful against considering only the bare bones of the decision rather than the process which led to the result with the generous benefit of hindsight.
His Honour agreed with the views expressed in Fenice 9 that regard should be had to the test for summary judgment – whether there was a reasonable prospect of showing the fees were unreasonable. Even if summary judgment was not appropriate the court would be expected to adopt a time and cost-effective way to resolve the dispute. The Court was in a position to determine a reasonable fee from the adjudicator’s time records and the underlying documentation without the need for additional disclosure. This was a multifaceted dispute, starting off with jurisdictional issues and then involving issues of law, fact and quantum, over a substantial sum. The total time spent of 114.5 hours was not obviously unreasonable taking into account the number and size of the submission, (from referral to surrejoinder) the need for a site visit and an eight hour hearing, in an adjudication lasting some 58 days. Individual objections to particular records of time spent were addressed and dismissed and the court concluded both that the time claimed to have been spent was reasonable and that if it had carried out its own assessment of the fees it would have assessed the fees as claimed at £32,842.50 plus VAT. Judgment was given for the fees claimed together with interest and costs. 4. Award —character of award— recovery of sums overpaid See Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd 10 This was the trial of liability issues between ICI as Claimant seeking to recover what it alleged were over-payments, from its contractor MMT following awards of some £20.93m in two adjudications. To enable the legal issues to be resolved, the parties had agreed to the assumption that the eventual financial exercise would show that the amounts paid to MMT were in excess of the correct contractual valuation of its works. ICI claimed it was entitled to the recovery of any assumed overpayment either under the contract terms or the equitable doctrine of restitution. MMT challenged this, claiming that the interim valuations of the account in the sums awarded and paid was “deemed to be the value of the works” and any alleged over-payment could not be recovered. MMT went further: it said the value of the account had already been determined in a finally binding adjudicator’s decisions and in a court judgment in MMT’s favour.
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