An adjudicator who makes a mistake so serious that the decision is unenforceable is entitled to his fees and expenses
In Systech v PC Harrington [2011] EWHC 2722 (TCC), the adjudicator was found by the technology and construction court to have breached natural justice by failing to consider a subcontractor’s defence of overpayment during a dispute between contractors involved in the construction of Wembley Stadium. Consequently, the adjudicator’s decision was unenforceable.
The adjudicator sued for his fees. The subcontractor refused to pay the adjudicator, arguing his decision had been worthless and there had been “a total failure of consideration”.
Delivering judgment however, Mr Justice Akenhead said there had “not been a total failure of consideration”.
He added this is notwithstanding that the decisions “which he issued were unenforceable by reason of his albeit honest and unwitting breaches of the rules of natural justice. In those circumstances, the adjudicator is entitled to his fees on all three adjudications”.
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