1) – entitlement on resignation – Steve Ward Services UK Ltd v Davies and Davies [2022] EWCA Civ 153 judgment 14 February 2022 Adjudicator’s Fees In a 36 page judgment over disputed adjudicator’s fee of £4000 odd plus VAT, the court of appeal gave authoritative guidance on the circumstances in which adjudicators are entitled to their fees when they resign or otherwise do not reach a decision. This was an appeal from the judgment of Roger Ter Haar QC[6] in which he found that the adjudicator Mr Davies was entitled to his fees on resignation. The appellant (SWS) as referring party had commenced an adjudication against a company (BIL). BIL asserted Mr Davies did not have the necessary jurisdiction, on the ground that the request for nomination had been made to the RICS before the notice of adjudication had been issued to BIL. Mr Davies resigned. SWS began a second adjudication and Mr Davies was again appointed by RICS. The contract relied on by SWS was between them and an individual (Ms Patel) who had at one time been but was no longer a director of BIL. After seeing the Referral and Response, Mr Davies raised the issue of the difference between parties to the contract, and the parties to the adjudication with SWS’s solicitors and BIL’s representative Mr Longden. The solicitors made various responses giving a number of unconvincing reasons why BIL was the party liable (e.g. as landlord or occupier of the premises where work took place or because they
paid invoices) even though not named in the contract. BIL provided unhelpful responses evading the questions posed by Mr. Davies. Significantly they did not take the point that they were not a party to the contract, but neither did they offer to submit to his jurisdiction or say they would waive any objection they might have. Mr Davies resigned and sent the parties an account for his fees for the work he had done based on the hourly rate in his Terms. Mr Davies’ appointment was based on (i) his letter and bespoke terms of appointment (“Terms”) which neither party objected to and (ii) the CIC Low-Value Dispute Model Adjudication Procedure (1st Edition) ("the MAP"); and (iii) The Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 649), as amended ("the Scheme"). In the first instance proceedings, in which Mr Davies claimed payment of his fees from SWS, the judge held that he was entitled to payment pursuant to both the Terms and the Scheme, even though he had in the judge’s view his resignation was “erroneous”. SWS appealed against the finding of entitlement to payment of fees and Mr Davies cross appealed against the finding of “error” on his part.
Coulson LJ gave the judgment of the court on the following 6 issues:
1.
Was there a jurisdictional issue in the adjudication?
2. Was Mr. Davies entitled to decline jurisdiction and resign in consequence?
3. Subject to bad faith was Mr. Davies entitled to be paid for the work done before resignation?
4. Was Mr. Davies guilty of bad faith?
5. Was clause 1 of the Terms contrary to UCTA[7]?
6. Should the court interfere with the Judge’s costs order?
[6] [2021] EWHC 1337 (TCC) [7] Unfair Contract Terms Act 1977
Made with FlippingBook - Online catalogs