Cases Part 2 2023 - final

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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