Hold up!

The adjudicator thought he had spotted an ambush. But by heading the highwaymen off at the pass, he robbed them of their chance to defend themselves

“The reverse ambush is unfair. Look – the adjudication, once under way, isn’t the place to find out what’s bugging the other bloke”

Buxton Building Contractors Ltd vs Governors of Durand Primary School is an adjudication case with two interesting points. The second is what some of us call the "phantom certificate". That's the apparition headed "interim payment" somewhere between the date of practical completion and (the yet to come) final certificate. "Phantom" because the JCT type contract doesn't provide for any such interim payment certificate. Happens a lot, but its not a contractual provision. I'll explain later.

First, let's deal with the "reverse ambush" in adjudication. Look, an ambush by either party in a dispute is not on. The scam is to keep hidden all, or most, or even some, of your arguments, troops, cavalry, then pounce on the opposition at the last minute. The "full frontal ambush" in adjudication is secretly to prepare the umpteen lever-arch files, then call for the adjudicator. Flummoxed, the other side won't know foot from horseback. Adjudicators are watching for this.

The "reverse ambush" is similar stuff. This time though the defendant has kept his powder dry. He waits until the adjudication machine whirrs and only then presents his arguments in the response documents. Look – the adjudication, once under way, isn't the place to find out what is bugging the other bloke. The agenda for adjudication isn't set during the 28 days; it is actually set prior to the adjudication. The reverse ambush is unfair. The ambush arguments may well be thrown out.

Buxton started the adjudication against the employer – Durand School governors. It said in the formal adjudication notice it required payment on an interim certificate. But the school's response document came in with a claim in damages. Buxton shouted foul and invited the adjudicator to ignore these documents. He did. He then pressed on and found in favour of Buxton. The school refused to pay up. So Buxton went to the High Court.

The court was uncomfortable about enforcing the otherwise binding decision. The Notice of Adjudication was wide enough to let in the damages claim of the employer. My suspicion is that the adjudicator thought the claim by the school in damages was a reverse ambush. And, if he were right it would have been unfair to let all that defence in. If it looked, for all the world, like a brand new set of key points not previously canvassed, then my guess is that for 10 green adjudicators sitting on the adjudicators' wall, all 10 would have booted out the ambush material. But Durand School plainly convinced the judge that it had raised all their complaints with the builder well before the adjudication got going. If that is right, then it was unfair not to let it in as the defence. In fact, it was Buxton that acted wrongly by only referring its side of the whole dispute. Mind you, it would have been easy for the school to start its own adjudication on the damages claim.

Now, what of the second point, the issue of a certificate, marked "interim"? It was extracontractual. The JCT Intermediate Form doesn't provide for any of this. But the employer doesn't seem to have cared much at the time. In which case, when does the instalment become payable for non-contractual certificates? The Scheme for Construction Contracts will apply when a construction contract fails to agree the intervals for a payment deemed due. It says 17 days from the date the payment becomes due, the certificate date is the due date. This is a neat example of the Construction Act filling the gap in a commercial contract in a sound way.

The employer argued in the adjudication that it was entitled to withhold its claim for repairs from that certificate and had issued the important Notice to Withhold before the certificate came on the scene. There is even a hint that the contract administrator agreed with the employer to issue the extra contractual payment certificate and advised the employer to serve a withholding notice. But all that fell apart when the adjudicator was persuaded to ignore those parts of the defence. He thought he was being scrupulously fair, and in the heat of the 28-day battle you can't do better than that … even when wrong.

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: 37164 Biggleswade

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