Adjudication
Bloor Construction (UK) Ltd v Bowmer & Kirkland (london) Ltd TCC

© Daniel Atkinson 27 December 2000

KEYWORDS: Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd (TCC) [2000] BLR314, Akewushola v Secretary of State for the Home Department [1999] ImmAR594, Bouygues (UK) Ltd v Dahl-Jensen (UK) Limited [2000] BLR49, Casella (London) Ltd v Banai [1990] ICR 215, Hanks v Ace High Productions [1979] IRLR 32, King v Thomas McKenna Ltd [1991] 1AllER653, Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] BLR93, The Montan [1985] 1LLRep189, Northern Developments (Cumbria) Limited v J & J Nichol [2000] BLR158, R v Cripps, ex parte Muldoon [1984] QB686, Sherwood and Canon Ltd v McKenzie [1999], VHE Construction plc v RBSTB Trust Co Limited [2000] BLR187, Housing Grants Construction and Regeneration Act 1996, Section 108(3), decision, accidental error, slip, clerical mistake, implied power, time to correct, timing of publication, corrected decision, His Honour Judge Toulmin CMG.

In Bloor Construction (UK)Limited v Bowmer & Kirkland (London) Limited (2000) TCC the issue was whether the adjudicator could alter his own decision to correct a clerical mistake or error arising from an accidental slip or omission, and if so in what circumstances.

Bowmer as main contractors entered into a contract with Bloor as subcontractors under which Bloor was to undertake labour and plant groundworks (including sub-structure, drainage, groundfloor slabs and external works) for a development at Whitely village, Fareham in Hampshire. The main contract was in the JCT standard form 1980 edition incorporating amendments issues in April 1998 to comply with the 1996 Act. Clause 41A.5.3 required the Adjudicator reach his decision within 28 days of his receipt of the referral and "forthwith send that decision in writing to the parties". The parties agreed that on the facts, the Adjudicator was required to reach his decision by the end of 9^th February 2000. At a meeting on 4^th February 2000 between the parties and the Adjudicator, the Adjudicator stated that he would reach his decision in principle on 9^th February 2000 and communicate it to the parties on 11^th February 2000, allowing himself a short period to complete his calculations and to finalise his decision for publication. On 11^th February 2000 the Adjudicator sent a fax to both parties containing a covering letter and his decision.

It was held by His Honour Judge Toulmin CMG QC that in the absence of consent to an extension of time by the party referring the dispute, the decision was rendered out of time. Although it is not clear from the decision why the main contract terms were relevant in this case, it was held that "forthwith" in Clause 41A.5.3 meant what it said and required that the process of communicating the decision should be started immediately after the decision had been reached. The decision has two elements; first, reaching the decision and, secondly, sending that decision to the parties. If the decision was sent only by post, it would not be received immediately. In this case neither party dissented from the Adjudicators proposal to publish his decision on 11^th February 2000 and this was rightly taken to signify that both parties agreed to this short extension of time.

The adjudicators decision failed to take into account payments made on account by Bowmer. The error was pointed out to the Adjudicator by Bowmer who sent a corrected decision by fax on 11^th February 2000, without inviting submissions from Bloor.

Bloor argued that once the Adjudicator has communicated his decision to the parties, his duty is at an end and he has no power to correct any errors, except perhaps clerical errors. Parliament laid down a quick and certain interim procedure for resolving disputes on the basis that any temporary injustice can be corrected at a later date. The Adjudicator has a semi-judicial role which terminates at the delivery of his decision.

It was held that the Act and the Scheme do not address the question of whether and, if so, in what circumstances a decision once taken can be amended. It is solely a matter of contract and in this case the agreement between the parties was silent. The question therefore was whether or not terms could be implied under which an Adjudicator can amend his decision.

Reference was made to Section 57 of the Arbitration Act 1996, which in the absence of agreement between the parties allowed the Arbitrator to correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission, or clarify any ambiguity in the award. Reference was also made to decided cases on what amounts to an accidental slip or omission - The Montan (1985) 1Lloyds 189 CA, R v Cripps (1984) 1QB 686 and King v Thomas McKenna Limited (1991) 1AllER653.

It was held that in the absence of a specific agreement by the parties to the contrary, there is to be implied into the agreement for adjudication the power of the adjudicator to correct an error arising from an accidental slip or omission or to clarify or remove any ambiguity in the decision which he has reached, provided this is done within a reasonable time and without prejudicing the other party. The adjudicator may exercise the power on his own initiative or on the application of a party. One further reason for such a power is that the High court does not have the ability to correct obvious errors in adjudication except in very restricted circumstances, even where such errors cause manifest injustice.

In the instant case it was held that the error was one that could be corrected by the Adjudicator. It appears from the decision that the adjudicator must give the parties a reasonable opportunity to make a presentation to the adjudicator. Judge Toulmin was prepared to hear argument as to whether further opportunity should be given to Bloor to make representations to the Adjudicator,but in fact no further submissions were made.