John Roberts Architects Limited -v- Parkcare Homes (No. 2) Limited
Case reference:
[2005] EWHC 1637 (TCC)
Monday, 25 July 2005
Key terms: Enforcement - Part 8 - RIBA (CE/99) - CIC Model Adjudication Procedure - Legal Costs - Adjudicator’s Fees - implied terms.
Parkcare Homes commenced adjudication against John Roberts Architects Limited. A notice of adjudication was issued on 10 June 2004. On 6 July, the Claimant served their response. On 7 July the Defendant accepted that the Adjudicator did not have jurisdiction. The adjudication was dis-continued and the Defendant paid the Adjudicator’s account.
The Claimant then asked the Adjudicator for a decision that the Defendant should pay the Claimant’s costs. Clause 9.2 of the RIBA Conditions of Engagement for the Appointment of an Architect (CE/99) that was applicable to the Contract between the parties incorporated the Model Adjudication Procedure published by the Construction Industry Council. Clause 29 had been amended allowing the adjudicator discretion to decide that one party may pay the other’s legal fees and expenses “as part of his decision”. On 12 November, the Adjudicator issued a decision that the Claimant’s costs were £87,131.04, that the Adjudicator’s further fee in assessing costs was £14,643.44, and that the Defendant should pay those amounts.
The Claimant relied on amended Clause 29, and on the implied term that the Adjudicator should have power to order the payment of costs.
His Honour Judge Havery QC held that the general position was that an Adjudicator did not have the power to award costs. However, amended Clause 9 provided that the Adjudicator could in this instance award costs. Those costs were to be awarded as a “part of his decision”. No decision had been issued because the adjudication had been discontinued. An implied term would only be incorporated if strictly required, and in this case it was not. The decision was therefore not enforceable and the claim was dismissed.
The Claimant then asked the Adjudicator for a decision that the Defendant should pay the Claimant’s costs. Clause 9.2 of the RIBA Conditions of Engagement for the Appointment of an Architect (CE/99) that was applicable to the Contract between the parties incorporated the Model Adjudication Procedure published by the Construction Industry Council. Clause 29 had been amended allowing the adjudicator discretion to decide that one party may pay the other’s legal fees and expenses “as part of his decision”. On 12 November, the Adjudicator issued a decision that the Claimant’s costs were £87,131.04, that the Adjudicator’s further fee in assessing costs was £14,643.44, and that the Defendant should pay those amounts.
The Claimant relied on amended Clause 29, and on the implied term that the Adjudicator should have power to order the payment of costs.
His Honour Judge Havery QC held that the general position was that an Adjudicator did not have the power to award costs. However, amended Clause 9 provided that the Adjudicator could in this instance award costs. Those costs were to be awarded as a “part of his decision”. No decision had been issued because the adjudication had been discontinued. An implied term would only be incorporated if strictly required, and in this case it was not. The decision was therefore not enforceable and the claim was dismissed.