In Bridgeway Construction Ltd v Tolent Construction Ltd (2000) TCC the issue was whether a provision in an adjudication procedure on the matter of costs was void if it inhibited a party from pursuing the remedies provided by the adjudication process.

The subcontract between Bridgeway and Tolent incorporated the CIC Model Adjudication Procedure, but with amendments.  Two amendments were relevant to the issue of costs.  A new clause 28 stated:

"The party serving the Notice to Adjudicate shall bear all of the costs and expenses incurred by both parties in relation to the adjudication, including but not limited to all legal and expert fees."

A new clause 29 stated:

"The party serving the Notice to Adjudicate shall be liable for the adjudicator's fees and expenses."

Bridgeway the subcontractors made an application to the adjudicator and the adjudicator awarded them a sum of money.  Bridgeway also asked for their costs, but the Adjudicator rejected this request because of the terms of the contract.

Bridgeway relied upon a House of Lords case Johnson v Moreton (1980) which dealt with the Agricultural Holdings Act 1948 and a lease that prohibited a tenant from acting under that Act in taking a benefit of that Act.  The House of Lords held that such a term was void in that it purported to avoid, get round, eliminate, the difficulties caused to the landlord by the operation of law in that Act.  Bridgeway argued that similar considerations applied to the new clauses 28 and 29.

Tolent argued that the clauses were not void.  They were not unfair since they applied to both parties.  in particular they were not void because they were part of a procedure which adopted the Act.  The clauses referred to the matter of costs, an issue on which the Housing Grants, Construction and Regeneration Act 1996 was silent.

His Honour Judge Mackay held that the clauses were not void nor voidable.  In this case the alterations were to a CIC Model Procedure and not alterations to any Act of Parliament.  Also Bridgeway had argued matters before the Adjudicator on the principle as to who should pay and who should not pay, so they were bound by the adjudication.  They gave the adjudicator the right to determine such issues and they were bound by his determination.