Get back on the field, ref

Do you remember the adjudication case of Bouygues (UK) Ltd vs Dahl-Jenson (UK) Ltd?

The adjudicator decided money should go from Bouygues to Dahl-Jenson, but then Bouygues told him he had slipped up in his calculation and that money should have gone the other way.

The adjudicator didn’t accept that this was the case. Bouygues, miffed, wouldn’t pay, and was taken to court. The judge was satisfied a mistake had been made during the headlong, 28-day adjudication rush but he would not, or could not, correct the error. The case is going to the Court of Appeal.

In a separate case involving an adjudicator’s slip-up, a different judge allowed the adjudicator to put things right. Bowmer & Kirkland (London) is the main contractor for a development at Whiteley Village, Fareham, in Hampshire. Bloor Construction (UK) is the ground works contractor. Their difference of opinion was over how much money ought to be paid to Bloor.

The referee was called in. Although his 28-day period was due to end on 9 February, he said on 4 February that he would not be publishing his decision until 11 February. Neither party dissented; this was an implied extension of time.

At 3.30pm on 11 February, the decision was faxed. It was a summary only saying, in short, that Bowmer shall pay Bloor £122 098.76. It wasn’t signed, but that makes no odds.

However, Bowmer’s QS, Mr Bareham, immediately spotted that the amount due overlooked cash paid on account. The adjudicator immediately acknowledged the oversight, and corrected the figures in the decision by 5pm. But Bloor said the correction was too late, so would Bowmer send a cheque for the lot. It didn’t, so Bloor went to the High Court to enforce.

At the hearing, Bloor’s barrister did the honourable thing. He readily admitted that there was no merit in Bloor’s case. Moreover, if the adjudicator’s corrected decision was not upheld, the final result would be unjust to Bowmer.

But this, he said, was not relevant. His purely technical argument was that, according to the naked law, once a decision has been published, nothing exists to revive the powers of an adjudicator to correct any errors. The referee has left the pitch, so too the players. Even the crowd has gone home. He can’t run back on the pitch and admit he wrote down the wrong score.

But counsel for Bowmer & Kirkland argued that since adjudication is imported into a contract, albeit without express agreement by the parties, there must be an implied term or promise that permits the referee to put right a clerical error.

The slip rule is for an obvious mistake. It is not a chance to have second thoughts to produce a revised decision or award.

Even judges make slip-ups when number-crunching, or get names the wrong way round. But a judge can correct at any time up to the point when he later draws up his formal order. Arbitrators make slip-ups too. In one case, for instance, an arbitrator awarded all the money to x but meant y, but corrected it using the slip rule in the Arbitration Act.

You might argue that if parliament had intended a similar slip rule in adjudication, it would have been put it in. Since it hasn’t, the decision cannot be corrected.

The judge in this Bowmer & Kirkland and Bloor affair considered the law and decided that there is an implied term in the act and in the scheme, which is similar to the slip rule in the Arbitration Act 1996.

Provided the parties do not expressly ban a slip rule in the contract, an adjudicator can correct an admitted accidental slip or omission.

This is not an opportunity to have second thoughts to produce a revised decision or award. This is not a chance to put right wrongly assessed evidence or misapplication of law. The referee cannot receive a fax from an aggrieved party that points out he has misunderstood law or fact. The slip rule is only for an obvious mistake of the sort in the Bowmer & Kirkland case. And the correction of a manifest error must be within an acceptable or reasonable time limit. The judge did not make clear the time limit for adjudication.

Notice that the judge said neither he nor the court had the power to correct the adjudicator’s error. It was a power vested only in the adjudicator. In this sense, the judge is consistent with the Bouygues judge, who stood by the adjudicator’s insistence that he had made no slip.

The difference in Bowmer & Kirkland is that the adjudicator admitted the slip straight away. After all, he has the power to dash back on the pitch and shout the right result, even though the crowd has gone home.

Bloor Construction (UK) Limited vs Bowmer & Kirkland (London) Limited is no 25 in our adjudication series.