the adjudication and which might thereafter arise) and that payment would be
made without prejudice to that position. NJCH's solicitors confirmed they would not
take any point on any jurisdictional challenge relating to payment of the fees.
About ten weeks later, after a considerable amount of work had been done, Dr
Chern's clerk asked for a further payment by way of security for fees of £15,000 per
party. NJCH were slow in paying and asked for more time. Liberty did not pay
either. Dr Chern's clerk issued several repeated demands for payment, latterly with
a 5pm deadline, finally saying that no further extension would be given and if
payment was not made, the matter would be 'taken out of his hands'. NJCH paid
and ultimately, it appears so did Liberty, in their case under a further reservation of
their position but without objection as to Dr Chern's entitlement. The reason now
put forward by Liberty was that to have objected would have been embarrassing
and the matter had to be handled sensitively.
In summary, Liberty's submission was that Dr Chern was making demands which
amounted to a breach of Paragraph 19 of the Scheme. Although he did not
exercise a lien, the (implicit) threat to do so was unlawful and/or contrary to
Paragraph 12(a) of the Scheme, there was manifest bias and that Dr Chern's
conduct should be rejected and his Decision not enforced.
The court noted what Sir Peter Coulson stated in his textbook Construction
Adjudication (4th ed) at para.10.45:
"In adjudication, the courts have indicated firmly that, because of the emphasis on
speed in adjudication above all things, the purported exercise of a lien will not be
permitted."
The court was referred to previous authority to the effect that an adjudicator could
not exercise a lien over his decision pending payment of his fees[12]. It was
13
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