HGCR Act 1996 - Status of Adjudicators Decision

© Daniel Atkinson 2001 02 October 2001

SUMMARY

The contract must provide that the decision is binding until the dispute is finally determined by legal proceedings or arbitration (if there is an arbitration agreement) or by agreement.

1. Finality of Decision - Section 108(3)

The contract must provide that the decision is binding until the dispute is finally determined by legal proceedings or arbitration (if there is an arbitration agreement) or by agreement.

The Act does not define the status of the adjudication Decision except in Section 108(3). The wording of Section 108(3) suggests that the Courts and arbitrator may examine the issues de novo without regard to the Decision or indeed the evidence adduced and legal reasoning in the proceedings. It is possible, however, for the Adjudicator to review or open up decisions of the Engineer/Architect under the contract, since the ambit of Section 108(1) is wide enough it is suggested.

2. Effect of the Decision - The Scheme

A.  Status of Decision

The Courts have jurisdiction to decide matters de novo. The parties may agree under Section 108(3) that the decision finally determines the dispute, otherwise it is binding until the dispute is finally determined in legal proceedings.

Paragraph I.20 refers to the operations of the contract. The Adjudicator may take into account any matters under the contract which he considers are necessarily connected with the dispute.

Paragraph I.20(a) gives the adjudicator power to open up, revise and review any decision taken or any certificate given by any person referred to in the contract. It is to be noted that the Scheme envisages that the contract may state that an Engineer/Architect decision or certificate is final and conclusive. In that case the Adjudicator does not have power under the Scheme to open up, etc the decision or certificates. This is a sensible provision, since it simply recognises the autonomy of the parties and reflects the approach taken by the Courts.

Paragraph I.20(b) gives the Adjudicator power to decide that any of the parties to the dispute is liable to make payment under the contract and when that payment is due and the final date of payment. The Adjudicator can therefore directly affect the cashflow of the parties and the financial administration of the contract. In addition Paragraph I.20(a) gives the adjudicator power to award interest and the discretion to decide the circumstances in which, and the rates at which, and the periods for which simple or compound rates of interest shall be paid. In using his discretion the Adjudicator is required to have regard to any term of the contract relating to the payment of interest.

B. Finality of the Decision - the Scheme

Paragraph 23(2) provides that the decision of the Adjudicator is binding on the parties and requires them to comply with it until the dispute is finally determined either by legal proceedings, arbitration (if the contract so provides or the parties agree) or by agreement. This implements Section 108(3) of the Act.

Section 108(3) of the Act also provides that the parties may agree to accept the decision of the Adjudicator as finally determining the dispute.