United Kingdom: Court of Appeal decision: John Roberts Architects Ltd. v Parkcare Homes (No.2) Ltd.

Last Updated: 15 February 2006
Article by Ben Worthington

The Court of Appeal has overturned a first instance decision on the construction of a provision in an adjudication clause entitling the adjudicator to award a party its legal costs. The Court of Appeal held that, to interpret an adjudication clause which stated that an adjudicator could award a party its legal costs "as part of his decision" as meaning that the adjudicator could not award costs where he did not give a substantive contested decision as to the matters referred to him, would lead to an odd and uncommercial result. On the proper construction of the clause, the adjudicator was entitled to award a party its costs despite the fact that he had not made a substantive decision.

To view the article infull, please see below:


Full Article

John Roberts Architects Limited v Parkcare Homes (No.2) Limited

To interpret an adjudication clause, which stated that an adjudicator could award a party its legal costs "as part of his decision", as meaning that the adjudicator could not award costs where he did not give a substantive contested decision as to the matters referred to him, led to an odd and uncommercial result. On the proper construction of the clause, the adjudicator was entitled to award a party its costs despite the fact that he had not made a substantive decision.

Lord Justice May, Lord Justice Keene and Lord Justice Baker – Court of Appeal (Civil Division)

In October 2002, Parkcare Homes employed John Roberts Architects (JRA) to provide architectural services in relation to certain building works. A dispute arose which was referred to adjudication. The first adjudicator resigned on basis that he lacked jurisdiction. On 10th June 2004, Parkcare issued a second adjudication, in the same terms as the previous notice. JRA had agreed not to take any points as to the adjudicator's jurisdiction but, when it served its response to the notice, it did raise jurisdictional points. The day after JRA served its response (7th July), Parkcare's solicitors wrote to JRA and the adjudicator accepting that the adjudicator did not have jurisdiction on the ground that no dispute had arisen, and that it was therefore inappropriate for the adjudication to proceed. Parkcare paid the adjudicator's costs up to the date of discontinuance.

JRA subsequently asked the adjudicator for an award of costs. The adjudicator concluded that he did have jurisdiction to award costs and he ordered that Parkcare pay JRA £87,131.04. He also ordered Parkcare to pay £14,643.44 in respect of his additional fees following the discontinuance of the adjudication.

Parkcare refused to pay and JRA brought Part 8 proceedings, claiming the £87,131.04 as damages for breach of contract. The contract between the parties incorporated the Model Adjudication Procedures (MAP) published by the Construction Industry Council, with amendments. Clause 20 of MAP stated that the adjudicator "shall decide the matters set out in the Notice…" Clause 29 (as amended) stated that - "The Adjudicator may in his discretion direct the payment of legal costs and expenses of one party by another as part of his decision".

The Judge at first instance held that the adjudicator could only direct the payment of legal costs as part of his substantive decision on the matters referred to him. Since the adjudicator had had not made a substantive contested decision (i.e. he had not made a decision on the basis of matters set out in the Notice of Intention to Refer to adjudicate), he had no jurisdiction to decide liability for costs.

JRA appealed. The Court of Appeal did not agree with the Judge that clause 29 limited the adjudicator’s power to direct the payment of legal costs to circumstances in which he makes a substantive decision on the dispute referred to him.

Lord Justice May noted that adjudications could be "fiercely adversarial and expensive". In the circumstances, he considered that it was not commercially surprising that parties might want to give the adjudicator a jurisdiction to direct the payment of legal costs. Further, Lord Justice May considered that it would be odd if the parties had intended to give the adjudicator power to award costs only in circumstances where he had made a substantive decision. In particular, he noted that a party, having agreed to be at risk as to the other party’s costs, could run an unmeritorious defence and then withdraw at the 11th hour "without being at risk of paying the legal costs which their conduct had generated… Why should parties want to agree to draw this particular line?"

The Court of Appeal concluded that the more natural meaning of the clause, and the more commercially sensible meaning, was not that the adjudicator could only decide costs as part of his substantive decision, but that he could decide a party’s legal costs "as part of what he may decide." The Court noted that this interpretation of clause 29 might be challenged by a "linguistic purist" but that to interpret the clause literally gave rise to a "very odd and uncommercial result".

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 14/02/2006.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Ben Worthington
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.