|
Synchronise watches
If you are going to accuse someone of failing to
progress work diligently, then you'd better make damn sure you
have given them the correct extension of time
"You cannot start adjudication unless there
is a dispute. A box containing umpteen complaints, claims and
whinges is not a dispute … yet"
This judgment by Judge Humphry Lloyd QC is
really helpful: Sindall Ltd vs Solland is case 76 in
our adjudication series.
The first lesson is all about Sindall not giving the other party
enough time to consider the box of files containing the complaint.
That meant the adjudicator had no right to adjudicate. The second
lesson is all about accusing the main contractor of not proceeding
reasonably and diligently, then booting him off the job, and being
wrong to do so.
Sindall took on the £7.8m contract to refurbish
Lombard House in Mayfair. The employer was Solland. The contract
administrator was Michael Edwards & Associates (MEA). The job fell
behind and MEA dished up a 12-week extension of time. Not good
enough, said Sindall. Geoff Brewer, the adjudicator, was called
in. He moved the extension up to 28 weeks. Meanwhile, MEA was
exasperated with the performance of Sindall. It gave formal notice
of failure of the contractor to proceed with the works, and unless
things got better PDQ, the employer would determine the contract.
Sindall protested, and pointed to even more
delays caused by 123 more instructions. It is a toss-up as to who
was more fed up with whom. Sindall now sent a box full of files to
the contract administrator applying for another extension of time.
It gave MEA seven days to respond or it would adjudicate. Hang on
a moment, said MEA; we need time to weigh all this up. Sindall
simply pressed the adjudication missile button.
Let's get the rules of this dispute game right.
You cannot start adjudication unless something called a dispute
has come into existence. A box containing umpteen complaints,
claims and whinges is not a dispute … yet. Nor is seven days
enough time to answer a box full of complaints. The judge reminded
us that for adjudication to start, "it must be clear that a point
has emerged from the process of discussion, or negotiation has
ended, and that there is something which needs to be decided".
Would all adjudicators please, please take the point seriously?
You ain't got a right to adjudicate if no dispute has
crystallised. And then, once it has crystallised, it is the
referring party's job to put all the arguments of both sides into
the referral bundle and pass that little lot to the adjudicator.
It is utterly unjust for an adjudicator to selfishly press on,
ignoring or half-heartedly considering an objection to
jurisdiction based on the proposition that no dispute has yet
matured.
In the Sindall case, the second
adjudicator had no jurisdiction to respond to the question about
further extensions of time, because MEA had had no time to
consider that vexed question. But Sindall asked the adjudicator
another question, which he did have a right to answer: "Was
Solland entitled to determine the contract?" He answered no. And
he was right.
MEA boobed horribly when it accused Sindall of
not proceeding reasonably and diligently. Or at least, it will
have boobed if the 12-week extension was wrong. The first
adjudicator said it was wrong; he said at least 28 weeks was
required. Then the second adjudicator, David Simper, twigged that
the accusation by MEA of Sindall's alleged dilatoriness was based
on MEA's 12-week assessment. The plain fact is that you cannot
accuse someone of failing to progress the works diligently unless
you have given the correct extension of time. And if MEA was wrong
to give a mere 12 weeks, it must follow that it was wrong to
accuse the contractor of being dilatory. Indeed, once you begin to
realise that extensions of time are open to continuous review, it
becomes nigh on impossible to know whether the contractor is
dilatory or not. The judge remarked: "Regularity and diligence
cannot be measured until the time for completion has been
established." I would add, truly established.
So, if the 12-week extension of the contract
administrator is a load of old tosh, he can't give notice of going
slow.
This Sindall case is a perfect example
of how efficient adjudication is. The contract administrator's
extension of time was reviewed within weeks by an independent
referee. Then, when the employer determined the contract, another
adjudicator declared within weeks that the determination was
wrong. Solland was right to claim that the second adjudicator had
no jurisdiction to decide extensions of time, but it made no odds
because he did have a right to decide that the dismissal of the
builder from site was wrong-headed.
Readers are invited to forward recent judgments
for reporting in this column (with full acknowledgement) to: Tony
Bingham, 3 Paper Buildings, Temple, London EC4Y 7EU. DX:007I LDE
Top
|
