Quiz: The charity case

As an adjudicator, you’d been here before. While you’d never considered yourself a charity, it took a considerable amount of your time and money to get the courts to uphold your non-charitable status.

But now you’re older and a little bit wiser, you thought.

It’s been an awkward month. Right from the start the respondent claimed that the referring party was bankrupt and that they would be unable to recover any monies later in court that you incorrectly decide are due. The contractor, of course, parried that the developer didn’t have two pennies to rub together and that’s why the dispute landed on your doormat in the first place. Both parties claimed your hourly rate was far too high and continued the adjudication under protest.

Neither party proved these allegations, but their conduct did nothing to persuade you from the fact that they were both probably right.

On weighing the correspondence, you assume that their lawyers had asked for cash in advance; in any event, it’s doubtful that anyone would consider them to be charitable, other than their mothers, perhaps.

You’d insured yourself as best you could by making both parties jointly and severally liable for your fees, but neither had signed your contract.

Letters had been exchanged almost daily, costs must have been high for the parties, whose behaviour in the adjudication had cost you much time and them money.

The 28 days are almost up. You’ve made your decision and informed the parties that it will be issued on payment of your fees by either or both.

Both parties tell you they have no intention of paying and insist that you publish your decision, failing which you will be, variously, reported to your professional body, taken to court and, impossibly you thought, asked to take a running jump.

What do you do? Do you have the right to withhold your decision until payment? If your decision is issued late is it invalid? Does the Act give you any right for payment of your full invoiced fees? Can the parties question your fees? Could you have done anything to avoid the situation? Can and would you make the lawyers liable for their clients’ non payment? Can you ask for a deposit before commencement?