The TCC has recently considered a number of cases concerning allegedly late adjudicators' decisions. In the latest case the issue was whether the time for the adjudicator to reach his decision had been validly extended.
Adjudications under the Construction Act are conducted on notoriously-tight timetables. The referring party may agree to a 14 day extension of the timetable if the adjudicator requests it. After that, both parties must agree to any further extension.
An agreed extension to a timetable may be brought about by both parties saying "yes, I agree to the proposed extension". But what if one of the parties is silent in the face of a requested extension, yet it continues to participate in the adjudication by making submissions etc in accordance with the proposed extended timetable? This issue arose in Yule v Speedwell.
In that case the adjudicator requested an extension of 2 business days to deliver his decision. This came after the referring party had already agreed to a 14 day extension. The respondent did not expressly agree to the 2 day extension, but at the same time it did not object. The respondent lost the adjudication, and tried to oppose enforcement proceedings on the basis that the adjudicator’s decision was reached late, i.e. after the 42 day period. The respondent said it had never agreed to the further 2 day extension. (This argument is distinct from the recent TCC decision in Mott MacDonald v London & Regional which suggested that an adjudicator's decision may be invalid when communicated more than 2 days after it was reached).
The TCC rejected the respondent’s argument. The court held that by its conduct, i.e. by not objecting to the adjudicator’s proposal, the respondent was to be taken as having agreed to the 2 day extension proposed by the adjudicator. The judge held:
There is a very clear message here. If a party opposes a proposed further extension to an adjudication timetable, he must speak up, or forever hold his peace.
Reference: AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360 (TCC)
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 20/06/2007.
