binding ’ unless BWE commenced adjudication or court proceedings within 20 working days. There was a massive difference in value between BWE’s final account (showing £1.9m due to them) and the FAS value - i.e. £2.384m gross versus £306k.
BWE commenced adjudication and court proceedings within 20 days of the FAS. The
first adjudicator resigned because the dispute was "absolutely incapable of proper
resolution in the timescales set by the Construction Act" in light of the overwhelming amount of material sent to him – the referral alone was accompanied by 26,000 pages of material. BWE served a further notice in respect of the same dispute,
essentially asking the second adjudicator to determine the sum properly due on the
final account. Mr Tony Bingham was appointed. Following the Referral, Response,
Reply, Rejoinder, and further submissions, Mr Bingham concluded that a sum of £1.4m was due to BWE (‘Award’) . At a fairly late stage, he had said that the nature and extent of the multiple variations changed the complexion of the sub-
subcontract into a beck-and-call arrangement, though not a new contract. He
indicated his line of thinking saying he proposed to look at the number of hours
worked and to select an appropriate contract rate and invited comments. The
parties did respond and address him on this in detail.
In the commercial court, BWE sought enforcement of the Award, and AMK opposed
and claimed that the Award was invalid on the grounds that Mr Bingham had not answered the question referred to him, namely “ What was the sum due?”, but had embarked on a frolic of his own in breach of the rules of natural justice in assessing
a fair price based on what he regarded as a new contract. Further, he had decided
that the FAS was contractually invalid without this issue having been raised by either
party. Separately, Mr Bingham had failed to address, and thus failed to exhaust, his
jurisdiction in relation to various lines of defence advanced by AMK, including several
items of cross-claim.
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