Her valuation exercise took the figure that ISG said it would have cost Platform to complete the works, and deducted that figure from what ISG said it would cost it to complete the works. That showed a saving of £417,541 and the adjudicator awarded that sum to Platform thus: "13.1 Firstly. In respect of payment, as above and my spreadsheets at Appendix B and C, I find that the Respondent is liable to make payment to the Referring Party in the sum of £417,541.33, as follows: "Assumed Platform costs to complete £2,506,096.38 "Actual ISG costs to complete £2,088,555.05 £417,541.33" When Platform demanded payment, ISG responded to say that it thought the adjudicator's decision was invalid and unenforceable. When enforcement proceedings were issued, ISG raised several arguments to challenge enforcement. It also started separate Part 8 declaratory relief proceedings. The two sets of proceedings were not heard at the same time. The application for summary judgment was heard first and separately. There were three grounds of challenge:
It said that ISG having paid the adjudicator’s fee, had waived the right to challenge the validity of the decision. The court, noting that the reservation was not a general reservation made during the course of adjudication proceedings, but an express one made after the decision was made, asked itself whether there was any evidence of affirmation of the decision. It said: 54. “It also seems to me that a waiver by payment of an Adjudicator's fees is a different type of alleged affirmation from the other situations considered in the authorities. As a matter of policy, it seems to me that this court should not do anything to discourage payment to an adjudicator of fees for the adjudicator's work. Thus, where the alleged election is payment of an adjudicator's fees, the court should perhaps be particularly careful to see whether the inference should properly be drawn that the payer intended to treat the decision as valid.” 55. In this case, as set out at paragraph 36 above, ISG's email of 16 December had made it clear that ISG regarded the Decision as invalid and unenforceable. Was there anything in the payment of the fees from which the inference can be drawn that ISG had changed its mind? In my view, the answer to that question is clearly "No", not least from the terms of the email of 23 December.” ISG’s email of 23 December to the adjudicator when making payment, made clear that it was paying the fee notwithstanding that it felt the decision was invalid and unenforceable and whilst specifically reserving all its rights.
“ (1) That the Adjudicator failed to exhaust her jurisdiction in respect of the dispute referred;
(2) That the Adjudicator breached natural justice in reaching her award on a method of valuation advanced by neither party; (3) That the Adjudicator failed to give adequate and cogent reasons for her decision on valuation.” Ground 1 was subsumed in ground 2. Before the natural justice issue was heard, Platform raised an objection.
[15] [2020] EWHC 945 (TCC) Roger ter Haar QC
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