Barrie Green -v- (1) GW Integrated Building Services Ltd and (2) G&M Floorlayers (Derby) Ltd
Wednesday, 18 July 2001
Key terms: Payment of adjudicator’s fees - Construction operations under sections 104(1), 105(1) HGCRA 1996 - Impartiality of adjudicator (paragraph 12 of the Scheme) - Compliance with 28 days period - Reasonableness of adjudicator’ s fees and expenses - Joint and s
The claimant sought to recover payment of his fees and expenses for acting as an adjudicator in a dispute between the two defendants. The first defendant subcontracted with the second defendant for flooring cover works. A dispute arose over non-payment or late payment of certain invoices. The dispute was referred to adjudication.
The defendants opposed payment of the adjudicator’s fees and expenses on various grounds:
1. The defendants contended the contract did not fall under the HGCRA 1996 or the Scheme. Grannum J did not accept that contention and found the subcontract works were an “installation in any building … of fittings forming part of the land” within s105(1)(c) of HGCRA 1996 and thus constituted “construction operations”.
2. The first defendant contended the adjudicator acted partially on several occasions during the adjudication procedure. Grannum J applied the “objective appraisal” test laid down in Discain Project Services Ltd v Opecprime Developments Ltd and concluded that there was no legitimate fear that the adjudicator was biased.
3. Grannum J refused the defendant’s allegation that the adjudicator breached paragraph 19 of the Scheme by exceeding the 28 days period without being granted an extension of time.
4. Grannum J approved the reasonableness of the adjudicator’s fees. However, he did not allow the expenses incurred by the adjudicator for using counsel in the run-up to the litigation. Grannum J denied entitlement since the costs did not accrue in the course of adjudication as contemplated by paragraph 25 of the Scheme.
Both defendants were held to be jointly and severally liable for the adjudicator’s fees, but the first defendant to indemnify the second defendant.
The defendants opposed payment of the adjudicator’s fees and expenses on various grounds:
1. The defendants contended the contract did not fall under the HGCRA 1996 or the Scheme. Grannum J did not accept that contention and found the subcontract works were an “installation in any building … of fittings forming part of the land” within s105(1)(c) of HGCRA 1996 and thus constituted “construction operations”.
2. The first defendant contended the adjudicator acted partially on several occasions during the adjudication procedure. Grannum J applied the “objective appraisal” test laid down in Discain Project Services Ltd v Opecprime Developments Ltd and concluded that there was no legitimate fear that the adjudicator was biased.
3. Grannum J refused the defendant’s allegation that the adjudicator breached paragraph 19 of the Scheme by exceeding the 28 days period without being granted an extension of time.
4. Grannum J approved the reasonableness of the adjudicator’s fees. However, he did not allow the expenses incurred by the adjudicator for using counsel in the run-up to the litigation. Grannum J denied entitlement since the costs did not accrue in the course of adjudication as contemplated by paragraph 25 of the Scheme.
Both defendants were held to be jointly and severally liable for the adjudicator’s fees, but the first defendant to indemnify the second defendant.