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.
You cannot start adjudication unless there is a dispute. A box containing umpteen complaints, claims and whinges is not a dispute … yet
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.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on info@tonybingham.co.uk.
