Cases - Barnes & Elliot Ltd v Taylor Woodrow Holdings Ltd
Record details
- Name
- Barnes & Elliot Ltd v Taylor Woodrow Holdings Ltd
- Date
- (2004)
- Citation
- AII ER (D) 204 TCC
- Legislation
- Keywords
- Construction contracts - adjudication - adjudicator's decision - communication of decision - procedure - time limit elapsed - failure to deliver decision within time limit - Housing Grants, Construction and Regeneration Act 1996, section 108
- Summary
-
The adjudicator had decided that Barnes & Elliott should be paid approximately £655,000 plus interest in relation to the dispute that had been referred to him.
The adjudicator had reached his decision on the basis that the liquidated damages stated in the contract were not a genuine pre-estimate of the loss.
Taylor Woodrow were not happy with this decision but the only basis on which they could develop an argument that it should not be enforced was that the adjudicator's decision had been released two days too late. It was admitted that this was an argument based on a technicality and that no serious prejudice had been done to Taylor Woodrow as a result of this delay.
The judge concluded that whilst time remains very important, an error that results in a day, or possibly two days, seems to be excusable. The judge concluded that such an error was within the tolerance and commercial practice that one must afford to the Act and to the contract. Whilst an adjudicator is not authorised to make mistakes, a decision arrived at in time and which is in principle authorised and valid does not become unauthorised and invalid because an error by the adjudicator in dispatching the decision means that it has not reached the parties within the time limit. However, the judge emphasised that the tolerance does not extend to any longer period (unless perhaps the parties had agreed to a very long duration), nor does it entitle an adjudicator not to complete the decision within the time allowed. If the adjudicator cannot arrive at a decision on all aspects of the dispute within the period required then, before time runs out, further time must be obtained as provided by the contract or otherwise by the parties' agreement.
The judge concluded, therefore, that the decision was enforceable.