It’s great, it’s the start of the fishing season here.  We awaited the time and day for it to start and really can’t cast a fly in the water before that time.  The date is important, the same for shooters when the grouse season starts on the glorious 12th and various other aspects of the sporting fraternities.

Leaving that aside, time is important.  In Epping Electrical Company Ltd .v. Briggs & Forrester (Plumbing Services) Ltd there was an Adjudication being examined in respect of the failure to issue a decision timeously and what effect that had; dates are important.  In this instance the Housing Grants Construction Regeneration Act 1996 Section 108(2) the English version, gives a Mandatory requirement for an Adjudicator to reach a decision within a period agreed by the parties.  This particular Adjudication fell under the Construction Industry Council Adjudication rules and their paragraph 25 of the model Adjudication procedure.

In essence Epping Electrical who were sub-sub-contractor to Briggs which was in turn right down the chain from Bouygues (UK) Ltd working on a residential development in London.  A dispute arose between the parties regarding variations, sub-contracts being fixed price, the length of defects liability periods and day works agreements in respect of labour.  It ended up in Epping issuing a notice of intention to refer the dispute to Adjudication.  It went to an Adjudicator on the 28th September 2006 with the agreement and the rules being those of the Construction Industry Council.  There was a request for an extension of time and around the 8th November the Adjudicator sought an agreement for both parties for a further 7 day extension of time which brought his decision making time to the 21st November 2006. 

This was agreed; the Adjudicator actually reached this decision on the 21st November 2006 but initially refused to issue the decision until he had received his fee, standard practise in some parts.  As a result of this he sent his decision out on the 23rd November 2006, two days late!  Within the decision Briggs was to pay Epping £372,869.46, Epping went forward looking for the decision to be enforced by a method in England called summary judgment based on their civil procedural rules (part 24).  Lo and behold Briggs challenged the decision saying the Adjudicators decision was late, his failure to issue timeously meant that he was non-compliant with the conditions and the agreement and there was no agreement to extend anything beyond that time as the decision was not valid.

Now then, If I was caught fishing the day before the season opened I could be prosecuted, worse still I could loss my rod and line and believe it or not when I was a teenager that was a big thing, you saved up a lot of money to have a Mitchell reel in those days.  So what was the outcome of the date being superseded?  The Judge held, His Honour Judge Havery QC, that;

 a)  The Adjudicator had failed to issue his decision by 21st November 2006 with the result that there was no agreed extension of time until that date for the making of his decision.  The making of his decision on the 21st November 2006 was therefore out of time and outside of his jurisdiction.

b)  Within the Paragraph 25 of Construction Industry Council Model Adjudication procedure, there was an imposition that required the Adjudicator to reach a decision in the period stated by the Act or by any additional agreed period and that model Adjudication rules was substituted and as a result of this, the matter fails as well.

 Now what is the effect of this decision?  Without going into the hurly burly of does CIC Model Adjudication comply and its effect on the holding of lien on the issuing of a decision.  There is no clarity in this instance that the Adjudicator’s issu