Decision – binding nature of earlier decision – serial adjudication: Prater Limited v John Sisk and Son (Holdings) Ltd [2021] EWHC 1113 (TCC) Veronique Buehrien QC Sisk engaged Prater in connection with the design, supply, delivery and installation of envelope façade (cladding and roofing) works to a new Boeing Fleet aircraft maintenance hangar, office and plant room at Gatwick Airport. The contract was the NEC3 Conditions of Subcontract, option A (2013) (as amended by the Parties). Option W2 contained provisions for adjudication. At the time of the application before the court there had been four adjudications resulting in decisions and a fifth was pending. Prater applied to enforce Decision 4, made in its favour by the adjudicator Mr Molloy. Decision 4 was (in part) based on the findings made by Mr Molloy in his Decision 2. It was opposed by Sisk on the basis that Decision 2 was unenforceable having been made without jurisdiction, which, it said, brought down with it Decision 4. In Adjudication 4, Prater sought payment of £2,253,731.65 plus VAT following Decisions 1 – 3. Mr Molloy awarded them £1.75m. Sisk's case Mr Molloy had no jurisdiction to reach the decision he did in Adjudication 2 because Prater's referral included multiple disputes rather than a single dispute. As a result, Decision 2 was unenforceable, not binding and a nullity.
3 . The terms were void under s. 3(2) (b) of the Unfair Contract Terms Act 1977 (‘UCTA’).
The judge had considerable doubt whether Clause 1 was caught by Section 3 of UCTA. Clause 1 was simply concerned with payment of the adjudicator's fees. It said nothing about what contractual performance the adjudicator was expected to perform. In any event, paragraph 9(1) of the Statutory Scheme gave the adjudicator an unfettered right to resign which was relevant to the contractual performance that the adjudicator was expected to perform. If the court was wrong as to the application of section 3, the judge had no hesitation in holding that Clause 1 satisfied the requirement of reasonableness in UCTA: (a) It was drafted with the judgment of Davis L.J. in Harrington in mind and therefore in accordance with terms which the Court of Appeal regarded as being capable of being commercially acceptable – though ultimately what is acceptable would be a matter for the contracting parties.
(b) The adjudicator's terms were terms commonly found;
(c) There was no inequality of bargaining power;
(d) Ward could have rejected the terms (and sought a different adjudicator), but instead accepted them not once but twice, and each time it was represented by solicitors with enormous experience and expertise in respect of adjudications. 4 . The number of hours claimed for (13 hours) was unreasonable. The court did not find the time spent excessive.
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