The Technology and Construction Court in the UK has refused to overturn an adjudicators determination, despite the adjudicator admitting that the decision was incorrect.
A dispute arose around whether a payment notice had been responded to within the correct timeframe. During the adjudication it was admitted that a pay less notice (similar to a payment schedule) was served on the respondent but that the notice was served out of time. Accordingly the adjudicator found in favour of the payee and ordered that payment was due in accordance with the payment notice .
After the adjudication it was discovered that the pay less notice was also served by email within the timeframe. As the contract provided that email was an acceptable form of service the notice was correctly served in time. The adjudicator was contacted and admitted that had he been aware that the notice was served in time then he would have reached the opposite decision.
The Court refused to overturn the adjudicator’s decision. The Court held that the adjudicator reached the correct decision on the information before him and the result was due to a failure by the applicant to bring the email to the adjudicators attention. Of interest the court held that the adjudication claimant was under no obligation to state that the pay less notice was also served by email and the adjudicator was under no specific obligation to go back to the parties to clarify the date of service.
This case highlights the importance of placing all relevant information before the adjudicator and how valuable professional advice can be in any dispute resolution process.