Cases - Ritchie Brothers (PWC) Ltd v David Philip (Commercials) Ltd [2005]
Record details
- Name
- Ritchie Brothers (PWC) Ltd v David Philip (Commercials) Ltd
- Date
- [2005]
- Citation
- BLR 384
- Legislation
- Keywords
- Construction contracts - adjudication - adjudicator's decision - time limit elapsed - failure to deliver decision within time limit - request for extension of time - whether expiry of time prevented adjudicator exercising jurisdiction - Housing Grants, Construction and Regeneration Act 1996, section 108
- Summary
-
The expiry of the 28 days for the adjudicator's decision in this case was 16 October 2003. On 21 October 2003 the responding party wrote to the adjudicator challenging his jurisdiction. The adjudicator's response was to request an extension of time to 23 October 2003, to which the referring party agreed. On 23 October 2003 the adjudicator indicated that his decision was ready and requested payment of his fee. Following payment of the adjudicator's fee by the referring party, the adjudicator's decision was released to the parties on 27 October 2003.
The judge made the following decisions:
(1) Under the Scheme, the commencement of the 28-day period was the date on which the referral notice is dated and not the date on which it was received by the adjudicator.
(2) The adjudicator's decision was made on 23 October 2003 and not on 27 October 2003 when it was released to the parties. The judge was referred to, but preferred not to follow, the decision in St Andrews Bay Development Ltd v HBG Management Ltd [2003].
(3) The expiry of the 28-day period prior to the referring party's consent to an extension of time did not, under the Scheme, render the adjudicator functus officio (i.e., no longer able to act having discharged all of his functions) but this did entitle either party to serve a fresh referral notice and a new adjudicator could be appointed. That was not done, so the adjudicator's decision was enforced.
On appeal, on point (3) only, the Inner House decided by majority of two-to-three that under the Scheme the adjudicator was required to reach his decision within 28 days of the date of the referral. Unless he received an extension of time prior to the expiry of this period any decision issued later than 28 days would be outside of the adjudicator's jurisdiction and therefore unenforceable.
There is no hard and fast criterion by which the court can determine how long after expiry of the time limit a failure to reach a decision could be considered to be merely technical, or conversely decide that the adjudicator's jurisdiction had come to an end.