England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT

		5 October 2017

 


HHJ SIMON BARKER QC :

The parties and the issues

1. The first claimant has a number of professional qualifications relevant to the construction industry and is an experienced adjudicator. The second claimant is a company through which he renders invoices for the fees and expenses relating to his professional services, including adjudication. For convenience the claimants are referred to collectively as 'Cs' and individually as 'C1' and C2' respectively. The defendant ('D') is a contractor in the construction industry.
2. On 1.3.16, C1 accepted an appointment to adjudicate upon a dispute between D and Manstal Ltd ('M Ltd')^[1], an electrical contractor, pursuant to a notice of adjudication and application to the RICS by D and consequential nomination by the RICS.
3. The parties agreed that the adjudication would subject to (1) the Scheme under The Scheme for Construction Contracts (England and Wales) Regulations 1998 ('the Scheme') and (2) C1's terms and conditions for acting as an adjudicator which are written terms in standard form and were dated 1.3.16 ('C1's terms').
4. The issues in this case are (1) whether C1 validly invoked cl.3.2 of C1's terms on 9.6.16 and (2) if so, whether C2 is entitled to payment by D of £28,303.92 pursuant to an invoice rendered on 10.6.16, or at least to some part thereof. In the pleaded case this sum is sought as damages for breach of contract. Issue (1) raises a dispute as to the correct meaning of a phrase at paragraph 9(1) of the Scheme and whether, and if so to what extent, promissory estoppel or the doctrine of acquiescence apply in C1's favour on the facts of this case.
5. It is common ground that, pursuant to cl.3.4 of C1's terms, C2 is the invoicing and payee party in respect of C1's fees. It is also common ground that, pursuant to cl.3.5 of C1's terms, interest is payable in respect of any invoiced sum not paid within 7 days under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998. During the trial, the parties agreed that the daily rate on the sum claimed is £6.59; that agreement has been embodied in a consent order amending the interest calculation claimed under the Particulars of Claim.
6. In his skeleton argument for trial, Mr Newman, Cs' counsel, put the case primarily on the basis of contractual entitlement and estoppel. In submissions, he revised the way in which Cs' case was advanced to one founded on the doctrine of acquiescence.
7. The only evidence before the court is C1's witness statement, to which all relevant documents are exhibited. In so far as it consists of factual statements narrating the relevant chronology and factual background, Mr Clarke, D's counsel, did not challenge any part of the evidence; in so far as the statement consists of comment or submissions, which it does to some extent, Mr Clarke elected to challenge this aspect of the evidence in submissions and did not require C1 to be cross-examined. This was acceptable to Mr Newman and, in my view, was eminently sensible.
8. Mr Clarke submitted that, as a claim founded in contract was the only case pleaded by Cs, founding a case in estoppel was not open to Cs and, in any event, was misconceived. As to acquiescence, Mr Clarke submitted that acquiescence had not formed any part of Cs' case prior to trial and, in any event, that also failed on the facts of the case. As to the contract claim, Mr Clarke submitted that, on the correct construction of the terms governing C1's appointment as an adjudicator, that appointment had expired before 9.6.16 and there was nothing for him to resign from, accordingly cl.3.2 of C1's terms was invalidly invoked.

The terms of the parties' agreement

9. Cl.3.2 provides :

"Should I resign as Adjudicator prior to reaching my Decision due to what I consider is a valid challenge to my jurisdiction to decide the dispute referred to me, then the Referring Party will be liable for payment of my fees and expenses".

D is the Referring Party.

10. The Scheme's provisions form a part of the agreement under which C1 was appointed. Both counsel referred to the following paragraphs under Part 1 of the Scheme : 8(1) and (4), 9(1) and (3), 11(1) and (2), 13(f), (g) and (h),14, 17, 19 and 22A. I bear all these paragraphs in mind. The powers and duties referred to at paragraphs 13 to 19 of the Scheme appear under the heading Powers of the adjudicator. The following paragraphs in the Scheme are relevant:

"9 (1) An adjudicator may resign at any time on giving notice to the parties to the dispute.

(2) An adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication.

(3) Where an adjudicator ceases to act under paragraph 9(1)-

(a) the referring party may serve a fresh notice under paragraph 1 …".

The critical phrase in issue for the purpose of ascertaining the meaning and scope of the parties' agreement is "at any time".

"11 (1) The parties to a dispute may at any time agree to revoke the appointment of the adjudicator. …".

"13 The adjudicator may take the initiative in ascertaining the facts and the law necessary to determine the dispute, and shall decide on the procedure to be followed in the adjudication. In particular he may- ……

(f) obtain and consider such representations and submissions as he requires, and, provided he has notified the parties of his intention, appoint experts, assessors or legal advisers,

(g) give directions as to the timetable for the adjudication, any deadlines, or limits as to the length of written documents or oral representations to be complied with, and

(h) issue other directions relating to the conduct of the adjudication".

"14 The parties shall comply with any request or direction of the adjudicator relation to the adjudication".

"17 The adjudicator shall consider any relevant information submitted to him by any of the parties to the dispute and shall make available to them any information to be taken into account in reaching his decision".

"19 (1) The adjudicator shall reach his decision not later than-

(a) twenty eight days after receipt of the referral notice …, or

(b) forty two days after receipt of the referral notice if the referring party so consents, or

(c) such period exceeding twenty eight days after receipt of the referral notice as the parties to the dispute may, after the giving of that notice, agree.

(2) Where the adjudicator fails, for any reason, to reach his decision in accordance with paragraph (1)

(a) any of the parties to the dispute may serve a fresh notice under paragraph 1 and shall request the adjudicator to act in accordance with paragraphs 2 and 7; …

(3) As soon as possible after he has reached a decision, the adjudicator shall deliver a copy of that decision to each of the parties to the contract".

The parties are at odds on whether paragraph 19 affects or limits the proper construction of the phrase "at any time" in paragraph 9.

In addition, the following paragraph, referred to in the Scheme under the heading Adjudicator's decision, is also relevant :

"22A (1) The adjudicator may on his own initiative or on the application of a party correct his decision so as to remove a clerical or typographical error arising by accident or omission.

(2) Any correction of a decision must be made within five days of the delivery of the decision to the parties.

(3) As soon as possible after correcting a decision in accordance with this paragraph, the adjudicator must deliver a copy of the corrected decision to each of the parties to the contract.

(4) Any correction of a decision forms part of the decision".

The imperative to deliver a decision or corrected decision "as soon as possible" is enforced strictly, see Lorraine Lee v Chartered Properties (Building) Limited [2010] EWHC 1540 (TCC), and delivery should ordinarily be understood to be required forthwith absent good cause and explanation.

Cs' claim in contract

11. Cs' case on the contract claim was that under paragraph 9(1) of the Scheme an adjudicator's power to resign "at any time" should be given an ordinary and natural meaning so that it is not time-limited and an appointment continues until there is a decision or resignation or other termination in accordance with other provisions of the Scheme; in this context, paragraph 19 of the Scheme did not operate to determine an appointment in the event that a deadline passed before a decision was reached.
12. Mr Newman submitted that there must be a specific act to bring an appointment to an end; if not the delivery of a decision, which concludes the appointment by performance, that act must be resignation under paragraphs 9(1) or 9(2) or revocation under paragraph 11(1) or an act in consequence of some other agreed term. Mr Newman submitted that, consistently with this, an adjudicator's appointment cannot simply lapse. He also submitted that the Scheme does not preclude recovery of fees after resignation.
13. Fleshing out his argument, Mr Newman submitted that "at any time" means at any time when an adjudicator has authority or capacity to carry out a residual act and when he has not reached a decision and has neither resigned nor had his appointment revoked. By 'residual act' I understood Mr Newman to be referring to (a) the very brief period permitted for delivery of a decision, (b) the period permitted for delivery of a corrected decision, which is as soon as possible after a correction period limited to five days following delivery of the original decision (paragraphs 22A(2) and (3) of the Scheme), or (c) a reasonable period for resolving any arguable jurisdictional challenge. Mr Newman sought to support (c) by reference to the judgment of HHJ Thornton QC in Christiani & Shand v The Lowry Centre Development Company Limited (judgment 28.6.00), at [15]. However, there is nothing in HHJ Thornton QC's judgment to suggest that he envisaged an adjudicator investigating a jurisdictional challenge outside the 28 day / 42 day / other period agreed by the parties deadline for a decision.
14. During his submissions, Mr Newman accepted that in a case where paragraph 19(1) applied and the adjudicator failed to reach a decision within 28 days and a party served a notice under paragraph 19(2)(a), say on the 29^th day, with the result that a new adjudicator was appointed, the original adjudicator ceased or had ceased to be such. I understood Mr Newman to maintain that the appointment of the new adjudicator was an act terminating the original adjudicator's appointment. However, faced with a different example, namely a request for information by the adjudicator on day 29 which was met with an immediate response by the parties of refusal coupled with an assertion that any decision would be out of time and assuming the adjudicator had the benefit of cl.3.2 of C1's terms in his own agreement, Mr Newman conceded that the adjudicator could not render an invoice under cl3.2 to the referring party. On analysis, that could only be because there was no longer any appointment from which that adjudicator could resign.
15. For the law in relation to construing contractual provisions both Mr Newman and Mr Clarke referred to the decision of the Supreme Court in Arnold v Britton [2015] UKSC 36. For my judgment in the present case, it suffices to draw the following from the speech of Lord Neuberger, with whom Lords Sumption, Hughes and Hodge agreed, at [15] :

"When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to "what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language of the contract to mean", to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 39…. And it does so by focussing on the meaning of the relevant words … in their documentary, factual and commercial context. The meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the [contract], (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of the party's intentions".

16. Mr Clarke's response was that "at any time" in paragraph must be read in the context of the Scheme's paragraphs as a whole and that, as a matter of construction of paragraph 9 of the Scheme, the power to resign "at any time" could not exist or be invoked after the date for the adjudicator to reach a decision determined in accordance with paragraph 19. Mr Clarke submitted, by reference to Arnold v Britton, that the construction contended for by D was consistent with the ordinary and natural meaning of the phrase, entirely consistent with the terms of the agreement between the parties and also with the overall purpose of the agreement, not contradicted by any facts or circumstances known when the parties made their agreement, and consistent with commercial common sense.
17. Mr Clarke contended that, under the Scheme, an appointment expired upon the deadline for the adjudicator to reach his/her decision and that there was nothing to resign from thereafter. Mr Clarke observed that there was nothing in C1's terms, including cl.3.2, to the contrary.
18. On the question of the duration of an adjudicator's appointment, Mr Clarke referred to Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd [2000] TCC 764, Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd [2005 CSIH 32], and Cubitt Building & Interiors Ltd v Fleetglade Ltd [2006] EWHC 3413 (TCC). In Cubitt, HHJ Coulson QC, as he then was, reviewed the earlier cases, including Bloor and Ritchie, and observed at [75] that "Adjudicators do not have jurisdiction to grant themselves extensions of time without the express agreement of both parties"; that provision of a decision out of time and without an agreed extension may well be a nullity; and, that "the significance of the adjudicator's default in such circumstances should not be underestimated". HHJ Coulson QC concluded, at [76], that the authorities support principles including that "an adjudicator was bound to reach his decision within 28 days or any agreed extended date" and that "a decision which is not reached within 28 days or an agreed extended date is probably a nullity". At [91], HHJ Coulson QC further observed that an adjudicator's "failure to complete within the agreed period would have represented a complete failure on his part to discharge [his] functions at all".
19. Mr Clarke submitted that these authorities demonstrated that adjudicators are subject to an absolute obligation to reach their decision within the timescales permitted under paragraph 19 of the Scheme and, further, that they have no jurisdiction to extend the deadline absent agreement of the parties. Referring to the RICS's guidance to surveyors acting as adjudicators under the Scheme, Mr Clarke noted that the RICS's guidance includes, at paragraph 3.6.1, that "the courts have concluded that reaching and delivering a decision are different but have concluded that a decision must, in any event, be reached within the required timescale". Mr Clarke submitted that that evidences the construction industry's understanding of the correct approach to the Scheme.
20. Referring to the decision of the Court of Appeal in PC Harrington Contractors Ltd v Systech International Ltd [2012] EWCA Civ 1371, Mr Clarke drew attention to the holding that the purpose of the appointment of an adjudicator is to produce an enforceable decision which, for the time being, would resolve the dispute. If adjudicators wanted to protect themselves, in particular their entitlement to fees if their decision was not delivered or proved unenforceable, it was open to them to incorporate a suitable provision into their terms of engagement which the parties would either endorse by agreement or reject by not appointing the individual as adjudicator.
21. Mr Clarke submitted that the authorities referred to supported the propositions that (1) an appointment is the subject of an entire agreement requiring performance by reaching a decision within the deadline stipulated or agreed pursuant to paragraph 19 of the Scheme and delivery thereof forthwith thereafter; (2) the tenor of all the authorities is consistent with the appointment lapsing at the end of the period stipulated or agreed under that paragraph if the adjudicator has not reached a decision at the end of that period; and (3) accordingly, the phase "at any time" has to be construed in context and resignation cannot occur after the time permitted or agreed for reaching a decision has passed but no decision has been reached.
22. In reply, Mr Newman noted that there is nothing in the language of the Scheme about an appointment lapsing or expiring by effluxion of time. He submitted that, consistently with PC Harrington, C1's terms, properly construed, did allow for resignation at any time, and he agreed that Mr Clarke had correctly summarised the conclusions drawn in Cubitt.

Decision as to proper meaning and scope of "at any time" in paragraph 9

23. The starting point for my decision on this issue as to the proper construction of the agreement between C1, D and M Ltd is the Supreme Court's judgment in Arnold v Britton. As appears from the passage from the leading judgment in that case cited above, for the purpose of ascertaining the meaning of an agreement what happened after the agreement was made does not assist.
24. The fundamental objective and commercial purpose of adjudication is the speedy determination of a construction dispute by a person agreed upon by the parties in dispute or recognised by an independent nominator as independent and suitably qualified and experienced. The Scheme provides for the adjudicator to have powers and to owe duties. An adjudicator may be removed by agreement between the parties to the dispute or may resign; subject to that, the deadline provisions of paragraph 19, supplemented by the slip provisions of paragraph 22A and the very short period recognised by the courts as a window for delivery of a decision once reached, define the duration of an adjudication. The delivery and slip correction periods only come into play if a decision has been reached within the time for reaching a decision calculated in accordance with paragraph 19 of the Scheme. There are sound, even compelling, commercial reasons why the courts expect strict adherence to paragraph 19 of the Scheme. For example, in Bloor Construction, the Judge referred to one party possibly being irredeemably deprived of its right to challenge a Final Certificate. The overarching reason for the Scheme was the need to cure the mischief and injustice caused by delays in resolving construction disputes.
25. That an appointment may be open ended until either an adjudicator chooses to resign or the appointment is revoked by agreement would be at odds with the rationale and the provisions of the Scheme.
26. Further, paragraph 19(2) of the Scheme does not provide for replacement of the adjudicator but for the appointment of a new adjudicator at the instance of any party. Why? The only sensible answer is because the original adjudicator has ceased to be such by and upon failing to deliver a decision in accordance with an agreement which incorporates the Scheme. In short, the appointment lapsed or expired by effluxion of time.
27. Paragraph 22 of the Scheme might give rise to an interesting point where reasons are requested on the cusp of or after a decision reached within time; but, it would not make sense, commercially or commonly, to treat the duty of an adjudicator to provide reasons upon request as providing an open-ended extension of time to an adjudicator's term of appointment. In any event, reasons must follow a decision and C1 did not reach a decision in this case.
28. Having regard to the principles stated by Lord Neuberger in Arnold v Britton as cited above, I reject as misconceived the argument that an adjudicator's appointment cannot lapse or expire by effluxion of time. That this is the correct conclusion to reach is emphasised by the authorities cited by Mr Clarke.
29. There being nothing of relevance to the possible duration of C1's appointment in C1's terms, the phrase "at any time" must be constrained by paragraph 19(1) of the Scheme and cease upon the time limit imposed or consented to for the decision to be reached and, if reached within time, delivered in final form.
30. To read "at any time" as Mr Newman submitted would be to disregard the overall purpose of these clauses in the Scheme and the contract, which is for expeditious time limited determination of construction industry disputes, and an affront to commercial and common sense.
31. In other words, and subject to the scope for express agreement between the parties to the contrary, paragraphs 19 and 22A of the Scheme operate to set longstop time limits for an adjudicator to resign from an appointment subject to the Scheme.
32. Thus, the proper construction of the phrase "at any time" at paragraph 9(1) of the Scheme as incorporated in the agreement between C1, D and M Ltd is unquestionably as Mr Clarke, for D, contended.

Cs' further contentions

33. The above construction must, of course, be applied to the facts, which include expressly agreed extensions of time. Cs also relied upon silence and conduct, or at least failure to dissent, as the basis upon which C1's appointment was extended. These contentions expand the basis of Cs' claim beyond one based on the terms of an agreement properly construed to one said, by Mr Newman, to be founded an agreement by conduct or acquiescence on the part of D.
34. By reference to the chronology of communications between the parties to the adjudication and C1's evidence as to his beliefs at the time, Cs submitted that D may well have represented by conduct forming an estoppel that time was extended alternatively that, by conduct on the part of D inducing reasonable belief and understanding on the part of C1 that the appointment was ongoing, the doctrine of acquiescence may be invoked. Mr Newman submitted that, in consequence, C1's resignation was valid and his right to payment under cl.3.2 was validly invoked. At paragraph 10 of the Particulars of Claim Cs plead in terms the circumstances said to give rise to such a reasonable belief on C1's part.
35. For authority to support these submissions Mr Newman referred to two further judgments of Coulson LJ (as he now is) when a first instance judge, namely AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360 (TCC) at [15] and [18] and Letchworth Roofing Co v Sterling Building Co [2009] EWHC 1119 (TCC) at [14], and a decision of Stuart-Smith J in KNN Coburn LLP v GD City Holdings Ltd [2013] EWHC 2879 (TCC) at [29] to [33].
36. In AC Yule, HHJ Coulson QC said :

"15 When the adjudicator asks for more time in circumstances like this^[2], I consider that there is a clear obligation on the part of both parties to the adjudication to respond plainly and promptly to the request. If in breach of that obligation, one party does not respond at all, there must be a very strong case for saying that they accepted, by their silence, the need for the required extension. The adjudicator can do no more than work out that he needs a short extension, and seek agreement from the parties to such an extension. Common sense, as well as common courtesy, requires a prompt response. If one party does not respond at all to the adjudicator's request, it seems to me that party runs a very clear risk that his silence will be taken to amount to acquiescence to the required extension.

…

18 … assume … that Speedwell did not agree to the two-day extension sought by the adjudicator. In those circumstances, I consider that Speedwell's silence in response to the request for an extension, and their conduct summarised in paragraphs 11 and 16 above^[3], means that, at the very least, Speedwell are estopped from denying that the adjudicator's decision of 4^th April was a valid decision and/or was reached in time. Both by their failure to say in terms that they did not agree to the extension that had been requested, and their participation in the exchange of information all the way through to the latter part of 3^rd April they represented that the adjudicator had until 5^th April to reach his decision. If they had made their position clear (which, on this assumption, was to the effect that they did not agree to any such extension), then both Yule and the adjudicator would plainly have acted differently so as to avoid the suggestion that the decision was out of time".

37. In KNN Coburn Stuart-Smith J, at [29], referred to Letchworth and AC Yule and set out [15] of HHJ Coulson QC's judgment in AC Yule in full. Stuart-Smith J went on to note, at [30], that when considering acquiescence "each case will depend upon on its own facts and that comparison with the facts of other cases where acquiescence has been established is seldom if ever be likely to be informative or determinative". Stuart-Smith J referred again to the judgment in AC Yule at [32] :

" … In the light of the clear warning in Yule that parties are under an obligation to make their objections plain and that silence may be taken as acquiescence this is, in my view, a clear case where it was not open to GD City to do nothing until 1 March 2013^[4] and then to attempt to spring a procedural trap without any prior warning".

38. The essence of acquiescence, as the noun is used in these cases, is that a party either stands by in such a manner as to induce an adjudicator to act in a way that he might otherwise not have done in the belief that the party assents to his so acting or that the party participates in the adjudication in such a way as to induce the adjudicator so to act.
39. Against that, it is fair to note that, in the context of promissory estoppel, silence and/or inactivity are often regarded as equivocation and insufficient to give rise to an estoppel or signify acquiescence amounting to consent, see Spencer-Bower : Reliance-Based Estoppel 5^th Edition at [14.18]. However, it is clear from the TCC cases referred to above that, at least in this specialist court and when considering the particular circumstances of an adjudication (where time pressure is a constant feature, as are several rounds of evidence and submissions, and specific extensions of time are normal but require agreement), the doctrine of acquiescence is applied robustly as an aid to validating an adjudicator's continued appointment. However, the facts of and the policy underlying these authorities fall well short of empowering an adjudicator to extend time without at least tacit, if not express, agreement of the parties in dispute.
40. In submissions, Mr Clarke accepted the general proposition that a party to an adjudication may acquiesce in an adjudicator's request for a proportionate extension of time, and acknowledged the approach taken by the TCC in the authorities cited by Mr Newman. D's case was simply that, on the facts, C1's appointment had lapsed before C1 purported to resign.
41. It is therefore necessary to consider the facts as evidenced by the communications between the parties and their effect, if any, on the duration of C1's appointment not only in the context of the agreement between C1, D and M Ltd properly construed but also in the context of Cs' further contentions. It is also relevant to keep in mind C1's evidence as to what he believed.

The facts

42. It is appropriate to preface a chronological review with the observation that this was not a straightforward adjudication and there were several, I think four, jurisdictional challenges.
43. On 3.3.16, C1 sent an email to D and M Ltd proposing a procedural timetable and asking the parties to agree an extension of time for him to reach his decision from 1.4.16 to 20.4.16. In that email C1 also stated " … I normally require 3 weeks form receipt of the last submission (when there are more than 2 rounds of submissions for me to consider) within which to reach my Decision". M Ltd agreed the timetable and extension within 10 minutes. D replied, by its solicitor Mr Craik of Clarke Willmott LLP (respectively 'Mr Craik' and 'CW'), agreeing 1.4.16 as the date for reaching a decision. By a further letter from CW D agreed the date of 20.4.16 for C1's decision. Thus, the adjudication kicked off with an agreed three week extension of time.
44. By 11.4.16, C1 had concluded that in combination the number and size of the submissions and issues rendered it impractical to reach a decision by 20.4.16. He also faced a jurisdictional challenge and had a holiday planned for the week 4–11.5.16. He sent an email to the parties proposing a revised timetable for the adjudication, emphasising again that he required "3 working weeks after receipt of the last directed submission within which to reach my Decision", proposing a revised target date for his decision of 20.5.16 with a longstop date of 27.5.16, and concluding "Please let me have your comments on all of the above ASAP, so that I can direct an agreed procedure & timetable". I note here that C1 recognised the need for agreement of the parties in dispute and proposed procedure which required a positive response and would be followed by a direction setting out the agreed procedure and timetable; I view this as a clear indication that C1 had paragraph 19(1)(c) in mind and understood that he had no unilateral power to extend time for reaching a decision.
45. D, by CW, replied that day by email stating that the proposed procedural steps concerning D had been complied with or were agreed in principle. However, D limited its agreement to an extension of the decision date to 20.5.16 and added that "This date can, however, be kept under review".
46. Neither on 11.4.16 nor subsequently did C1 revert to D about this. Further, and contrary to the inference logically inherent in his 11.4.16 email, C1 did not issue a direction to the parties. Clearly he had not received D's agreement to any extension beyond 20.5.16. Accordingly, any direction could not have reflected an extension by agreement beyond 20.5.16. That said, it appears from a letter from CW dated 29.4.16 that D expressly treated C1's email of 11.4.16 as a direction.
47. C1 proceeded to decide the jurisdictional challenges then before him and he was faced with other procedural disputes.
48. A further significance of CW's 29.4.16 letter is that it enclosed a lengthy submission on behalf of D. By expressly referring to C1's email of 11.4.16 as "your directions", without any qualification as to 20.5.16 rather than 27.5.16 as the deadline for reaching a decision, and bearing in mind that D was enclosing a lengthy submission, D could be taken to have agreed on 29.4.16 to 27.5.16 as the deadline for C1 to reach a decision.
49. M Ltd formed the view, and raised the point with C1, that CW's submission raised new points and, by email on 3.5.16, C1 permitted M Ltd to make a short written response provided it was received on that day. This was on the eve of C1's week long holiday.
50. On 13.5.16, having returned from holiday and having read the submissions submitted by D on 29.4.16, C1 sent an email to the parties saying that he was "not minded to disregard any submissions [he had] received which [he] did not expressly invite or request". C1 allowed M Ltd until 16.5.16 to file a short response to what M Ltd contended were new matters raised by D. C1 concluded :

"After that I want no further uninvited submissions & I will require 3 working weeks thereafter within which to reach my Decision i.e. until Tuesday 7^th June (allowing for the 30^th May Bank Holiday), as previously advised in my 11^th April email timed at 14.58".

This constituted a request by C1 for agreement to extensions of time totalling in excess of 10 weeks beyond the 28 day period under paragraph 19(1)(a) of the Scheme.

51. M Ltd expressed its agreement within minutes by an email stating "Acknowledged with thanks".
52. D remained silent throughout the period to and beyond 27.5.16. D's next communication was an email from Mr Craik of CW on 31.5.16 at 19.43hrs :

"We refer to our previous emails regarding the timetable for your decision and note that our client was anticipating receiving it by Friday 27 May 2016.

Unfortunately, neither we nor our client has any record of having received your decision by that date. Further, assuming a hard copy might have been sent by post over the bank holiday weekend we waited until today to raise this issue. No decision has been received today (31 May).

Can you please kindly confirm what the position is?"

Mr Craik had been a named recipient of C1's 13.5.16 email, as had been a trainee or assistant solicitor under Mr Craik's supervision.

53. Pausing here, my view of these events is that D contributed to, but was not the sole cause of, C1's requirement for a yet further extension of time to reach a decision. I infer that C1 reasonably and properly, in the spirit of what is expected of an adjudicator, wanted to do the job properly and had paragraph 17 of the Scheme in mind. He also had been afforded only limited time (29.4.16 to 3.5.16, which included a weekend and a bank holiday Monday) within which to grasp the import and consequences for the adjudication of D's substantial further submission. The fact remains that he did not do so until after his return from holiday, which left two weeks for him to reach a decision. D's silence in the period following C1's 13.5.16 email should have resonated with C1, but, evidently, it did not. As to Mr Craik's email of 31.5.16, Stuart-Smith J's reference in KNN Coburn "spring[ing] a procedural trap without any prior warning" is not inapposite.
54. C1 replied by email on 1.6.16 at 07.10hrs. D's email had caused him some concern. C1 answered:

"… the position concerning the date my Decision is due is that I have been proceeding as per my 13^th [M]ay email below as I do not recall having received any objection to the Decision date of 7^th June stated therein".

Also on that day C1 sought apparently missing documents from D and M Ltd.

55. On 2.6.16, Mr Craik sent an email stating that they were seeking instructions from D and that they could not "at this stage, find any agreement from either party to extend" the decision date beyond 31.5.16. In fact, the documents in the trial bundle show that Mr Craik was the recipient of two emails from M Ltd's solicitor; the first is that of 13.5.16 referred to above and the second, sent on 1.6.16, expressly confirmed agreement to 7.6.16 or any further extension if necessary.
56. In a further email sent on 2.6.16, Mr Craik said that the two relevant personnel at D were away on annual leave that week and reserved D's position "on this important issue" until their return, but would seek to contact them. There is no evidence from D, accordingly what, if anything, was done by CW to contact D is not apparent. However, in this age of instant electronic communications I am inclined to infer that, absent evidence to the contrary, prompt communication with D's relevant personnel was possible.
57. Also during the morning of 2.6.16, C1 sent an email to M Ltd and CW which set out the chronology relating to extensions of time as C1 saw it, asserted that in the absence of a response to his 13.5.16 email C1 "had been proceeding on the basis that it was agreed that [he had] until 7^th June to reach [his] Decision", stated that the issue needed to be resolved "now", and concluded :

"… so that we all know where we stand on this issue, & so as to avoid any possible abortive work &/or wasted expenditure, I require ASAP [D's] clear & unequivocal confirmation of their agreement to me now having until 7^th June to reach my Decision".

58. On 3.6.16 Mr Craik responded that it was unlikely that D's instructions as to an extension to 7.6.16 would be obtained before 6.6.16, and repeated D's reservation of rights.
59. Shortly thereafter, also on the morning of 3.6.16, C1 sent an email to CW and M Ltd acknowledging that D might contend that there was no agreement to extend the decision deadline to 7.6.16 and, therefore, that C1 was already out of time and could not make a valid decision. C1 explained and announced his intention to stop work and not resume unless and until agreement was reached for a new decision date, which had to include an extension beyond 7.6.16 for the time lost as from 3.6.16. It is unclear what period of extension C1 required, and it was for him to specify the time period. All that C1 did was to state that it was to "include", not be limited to, the period 3.6.16 at10.00hrs to 7.6.16, including the two weekend days which he had stated he would use to work on his decision.
60. On 7.6.16 at 10.57hrs, C1 sent an email to the parties demanding an unequivocal answer that day as to either a new agreed date for his decision or confirmation that C1 should resign as being already out of time as from 27.5.16. By this email C1 attempted to put the onus on D and M Ltd to determine a new extension deadline, but only C1 knew what time he would actually need.
61. On 7.6.16 at 17.29hrs, Mr Craik sent an email stating that D's understanding was that the agreed date for C1 to reach a decision was 27.5.16 and that, having considered the recent emails, D "decline[d] to agree to extend the date to 7 June or such other date as may now be required".
62. Within an hour, on 7.6.16, C1 responded that he would not do anything "in terms of either continuing with my Decision or resigning" until he had received a response from M Ltd. That was not forthcoming until the afternoon on 9.6.16. That response drew attention to AC Yule and the two related TCC authorities referred to above.
63. On 9.6.16 at 18.01hrs, C1 sent an email to the parties in which he stated that it had become "clear that I no longer have any jurisdiction to reach a decision in this Adjudication", that he would "not now be completing the Decision [he] had substantially completed" and that the cause was "entirely due to [D], by virtue of their silence following my 13^th May email timed at 11.36 am which lead (sic) me to reasonably believe that I had until 7^th June to reach my Decision". C1 stated that he treated Mr Craik's 7.6.16 email as depriving him of the necessary jurisdiction to continue with the adjudication and reach a decision, and continued :

" … the fact remains that in principle that constitutes a valid challenge to my jurisdiction by [D] which now leaves me with no alternative other than to hereby formally resign as Adjudicator as expressly provided for at para 3.2 of my 1^st March 2016 Terms and Conditions".

In consequence C2 sent an invoice for the sum claimed to D.

Decision

64. The latest extension of time expressly agreed to by D was to 20.5.16; that was subject to an assurance that a further extension, then sought to 27.5.16, would be kept under review. However, CW's letter of 29.4.16 contained an unqualified reference to C1's directions of 11.4.16 which implied agreement to 27.5.16 as the deadline for reaching a decision. Bearing in mind that the letter enclosed substantial further submissions and CW's earlier assurance that the deadline of 20.5.16 would be kept under review, it is fair to read the 29.4.16 letter as consenting to a revised deadline of 27.5.16, to which M Ltd had already agreed. That is how I read CW's 29.4.16 letter.
65. When, on 13.5.16, C1 informed the parties that he required until 7.6.16 to reach his decision, he reiterated his original stipulation of requiring a three week window to consider the material submitted to him and decide. As D had prompted and at least contributed causally to this requirement by the substantial further submission of 29.4.16 and as C1 had made clear both that he was not minded to disregard D's submissions and the time frame he required, it was incumbent on D to make its position clear by responding to C1's email. In the absence of an express response from D and in the light of the authorities reviewed in and including KNN Coburn, C1 was entitled to treat D's silence as agreement to an extension for C1 to reach his decision to 7.6.17. The TCC authorities contain no suggestion that it is incumbent on an adjudicator to press for a response. The adjudicator's entitlement to rely on silence must be a fortiori where the silent party causes or contributes to the need for an extension of time.
66. Accordingly, Mr Craik's email on behalf of D on 31.5.16 was misconceived. I am sceptical about Mr Craik's first email of 2.6.16; it is surprising that M Ltd's solicitor's emails, including one of the day before were not to hand. As to CW's, by Mr Craik, position that D's views on the important issue of extension of time to 7.6.16 could not be obtained, I have explained the inference I am inclined to draw from which it would be just to conclude, which I do, that that email was a ploy to run the clock down. If my conclusions are erroneous, the fault lies with D in not adducing evidence to explain its conduct and positions taken.
67. It is apparent that, by or on 2.6.16, C1 concluded that he had to respond quickly and authoritatively. C1 did respond by email on that day. However, as I see it, he had a clear opportunity to set out what he required in order to salvage the adjudication and, at the same time, protect his position as an adjudicator. This could only be done if C1 maintained control of the timetable. Instead, C1 sought a response "ASAP" which put D in control of the timetable.
68. As to C1's email of 3.6.16, it is commendable that he was trying to save expense by stopping work, but baffling that he did not look to protect his own position on the assumption, which was at least a possibility and which he expressed himself to be working to (and which I have found to be the position), that his appointment was then ongoing.
69. On 7.6.16, following receipt of Mr Craik's email, strikingly timed at 17.29 (and for the avoidance of doubt that is not a favourable observation), C1 still had, on the timetable he understood himself to be working to, more than 6 hours to invoke cl.3.2 of C1's terms. Further, from 31.5.16, or certainly no later than 2.6.16, C1 knew that he had a jurisdictional issue to resolve and he must have known that cl.3.2 of C1's terms at least might provide some form of protection for recovery of his own fees and expenses.
70. While I view D's conduct through CW and Mr Craik as reprehensible, the risk that D would maintain that C1's appointment lapsed on 27.5.16 was clear to C1 sufficiently before 7.6.16 for him to address his options. Stopping work was an understandable response but not a solution. Stipulating for a yet further extension of time of unspecified duration, especially in the face of D's assertions that the deadline for reaching a decision had already passed and that consideration would not be given to any extension of time beyond 27.5.16, was not. Most critically of all, C1, as an experienced adjudicator and as evidenced by the email traffic, knew by 17.30 on 7.6.16 that (1) the disputing parties' agreement was required to any extension of time, (2) D had stated clearly that it regarded the deadline for reaching a decision as having already passed and had expressly refused to agree an extension to 7.6.16 or any later date, and (3) resignation had become a realistic possibility. C1 had no basis for thinking that the deadline for reaching a decision would extend beyond 7.6.16. It was for him alone to decide whether or not to invoke cl.3.2 before midnight on that day.
71. The only logical conclusion to come to applying the law to the particular facts of this case is that C1's appointment lapsed on 7.6.16. Accordingly, and as Mr Clarke submitted, there was nothing for C1 to resign from on 9.6.16. C1's notice of resignation was invalid. It follows that the claim fails and C1 is not entitled to recover the sum claimed. Had C1 resigned on 7.6.16 the outcome would have been very different.

Note 1   References to M Ltd also include M Ltd’s solicitor acting in the adjudication.    [Back]

Note 2   Late on in the 28 day period or extended time, new information is provided by party and in order to do the job properly the adjudicator wants to afford the parties an opportunity to comment and may need to ask for a couple of extra days to take the comments into account.    [Back]

Note 3   Email communications between the adjudicator and the parties and delay in responding to the adjudicator’s request and failure by Speedwell, when responding on 3rd April and providing 65 pages of invoices, to state that they regarded that as the last date for reaching a decision.     [Back]

Note 4   The day after the 28 day deadline for reaching a decision, absent an agreed extension.     [Back]