The Scheme provides that an adjudicator is entitled to be paid a reasonable amount and can determine how the payment will be apportioned between the parties.
In 2012, the courts confirmed that if an adjudicator's decision was not enforceable (if made out of time, or made in breach of the rules of natural justice, for example) an adjudicator cannot claim any fee unless there is a specific entitlement in their contract with the parties. Since then it has been a standard term of any adjudicator's appointment that they are entitled to be paid even if the decision is subsequently found to be unenforceable.
It is rarely argued that hours were charged by an adjudicator but not spent. Usually the complaint is that tasks took longer than necessary, or weren’t necessary at all. If challenged, an adjudicator will need to provide basic information including timesheets showing how the cost is made up. It is then for the paying party to show that the fee is unreasonable. The court's view, however, is that the demands of the fast-paced process need to be appreciated and it is likely to be a high test to overcome to show an adjudicator's fee is excessive.
Successful challenges to an adjudicator’s fees are therefore likely to remain extremely rare.
Next week we will look at issues surrounding challenges to the decision and final determination. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.
Should you require any assistance with adjudication, we have a large and experienced construction team who regularly deal with adjudications and we would be happy to discuss the process with you.
