Received a Notice of Intent to Apply for Adjudication

[Donny462]

Our property has suffered Subsidence from underground coal mining, it has been an ongoing battle, but recently the aspects where we represented ourselves against the Coal Authority, we won and work is due to begin shortly on our home. As part of the Coal Mining Act, anyone whose property suffers from coal mining subsidence, is allowed to instruct an `expert` to help with the claim and costs are to be met by the Coal Authority.

For one aspect of our claim which went to Arbitration, we instructed an `expert` to represent us as he was a structural engineer, and the services of one such qualified person were needed, we instructed him as he told us that he had `gone up against the CA 25 times and only lost one case, and that was because the claimant backed out`. He certainly talked the talk, but when it came down to it, he didn`t walk the walk and he made numerous mistakes, which ended up in large aspects of our claim being refused,and us losing out on a great deal of money! Added to which, the arbitrator (wrongly!), made the ruling that we had to pay our own costs of our `expert`, which are around £30,000.00...so not only did the `expert` lose us a lot of money, he then expected us to pay him nearly £30,000.00 for doing so, which is extortionate given what others have charged or the same service!

We have made a complaint to the Central Arbitration Committees Service regarding the Arbitrators ruling that we have to pay our experts costs, given that the Coal Mining Act states Claimants `experts` services are paid for by the Coal Authority and that is currently being dealt with. However, today, I have received a Notice of Intent to Apply for Adjudication from the Structural Surveyor, wherein he is trying to get an Adjudicator make me pay his bill! Not only that, he clearly states that he will be picking the Adjudicator!

My question is this, can this man apply to an Adjudicator to make me pay his bill whilst a complaint is ongoing with the CACS? If so, is it right that he can pick who the Adjudicator is? Surely, that would be unfair as how can they be classed as unbiased if they know this man? Please can anyone advise me how to deal with this?

Many thanks

[Donny462]

Please can anyone advise me? I have now had an email stating Adjudication is starting and the person Adjudicating is none other than the guys oen Solicitor! How can he be impartial? The answer is, he can't and I am now at my wits end .

[des8]

.If they are claiming a right to statutory adjudication under or a term of your contract you could point out to the solicitor
that the right to adjudicate does not extend to construction contracts with home owners for works to their principal, private dwelling.

The Housing Grants, Construction and Regeneration Act 1996 sec 106 as amended by the Local Democracy, Economic Development and Construction Act 2009

[Donny462]

Des8 thank you so much for your reply.
On reading the notes for adjudication, it states that adjudication cannot be used in coal mining cases (which mine is), nor can it be used for residential/ private properties, which of course mine is...I thought I had misinterpreted it , or misunderstood it, so for you to confirm the section regarding private properties, is music to my ears! Thank you so much! I will let you know what happens.

[Donny462]

.If they are claiming a right to statutory adjudication under or a term of your contract you could point out to the solicitor
that the right to adjudicate does not extend to construction contracts with home owners for works to their principal, private dwelling.

The Housing Grants, Construction and Regeneration Act 1996 sec 106 as amended by the Local Democracy, Economic Development and Construction Act 2009

Hi @Des8
On reading the notification of the adjudication from the RICS, they state :-

" The dispute relates to ******* invoices raised for expert advise relating to the adequacy of remedial works required to a residential property following mining subsidence"

Surely the RICS should know that the right to adjudicate does not extend to construction contracts with home owners for works to their principal , private dwelling? Or have I got it wrong? Please can you advise?

I have never signed any contract with this person either. and I have a complaint in against him as he was grossly negligent. and it ended up with him walking off the job over a year ago, leaving us living in a property classed as dangerous, and us having to deal with the problem ourselves.

[des8]

RICS do know, but the office boy might not
Suggest you draw everyone's attention to what seems to be a "misunderstanding"

[Donny462]

Ahhhh thank you Des8, I didn't think of that

[Donny462]

des8
I haven`t written back to the RICS yet as I was taken into hospital late on Wednesday evening and am just out, However , I shall be writing today, informing them of their `misunderstanding`.

In the meantime, this morning I have received this email from the adjudicator, it would appear that he isn`t aware either of the ruling that adjudication does not extend to mining issues or homeowners for work done to their principal dwelling. Can you please explain to me how this adjudication could make me abide by their adjudication when I am not a member of the RICS or any other body that could apply this adjudication , I am really confused. Many thanks for any help/explanation you can give me .

This is todays email :-

Dear xxx xxxx

Thank you for the Referral received by email yesterday. Please see attached my letter. Hard copy by post.

I have not received any communication from xxx xxxxx concerning this matter. It is imperative that xxx xxxxx contacts me as a matter of some urgency. The timescales in adjudication are very short, and in this regard I would direct her to point 1 of my letter which states that if she wishes to make a written submission and provide any material she wishes me to consider it must be provided by 5pm on 27^th September 2019.

If xxx xxxxx fails to participate in the adjudication, I am obliged to and will make my Decision based on the information before me.


Regards

[Donny462]

I have now written to the adjudicator informing him of the `misunderstanding`, but it looks to me like he is going to carry on with the adjudication regardless of whether the application is exempt or not! Below is my email to him, and his reply, please could you let me have your thoughts.

Many thanks

.
Dear xx xxxxx

After having taken advice, we feel that you have misunderstood this application for adjudication by xxxxxx, as mining disputes are exempt from this adjudication process, (and this is in relation to Mining problems), additionally, the right to adjudication does not extend to construction contracts with home owners for works to their principal, private dwelling, as per The Housing Grants Construction and Regeneration Act 1996 sec 106 as amended by the Local Democracy, EconomicDevelopment and Construction Act 2009.

Kind regards



Dear Sir,

Thank you for your email.

I would be grateful if you would advise me whether you or somebody else will be making a Response to the Referral submitted by xxxxxx (notwithstanding your comments).

Meantime, I note your comments, which I take as a challenge to my jurisdiction to act as the adjudicator concerning the dispute. I therefore invite xxxxx to make submission to me concerning the challenge by 5pm tomorrow, whereupon I am obliged to consider the challenge and make my own non-binding conclusion, and advise the parties accordingly.

I look forward to hearing from you both.

Regards

Xx xxxxxxxx

[des8]

The housing Grants, Construction and Regeneration act 1996 is quite clear: 106 Provisions not applicable to contract with residential occupier.
(1)This Part does not apply—
(a)to a construction contract with a residential occupier

He not only does not have any jurisdiction, but he has no authority.
he cannot over ride statutory law, so it is interesting that he is going to make a "non binding" decision.
non binding on whom? himself or you or the surveyor or all of you together?

[Donny462]

The housing Grants, Construction and Regeneration act 1996 is quite clear: 106 Provisions not applicable to contract with residential occupier.
(1)This Part does not apply—
(a)to a construction contract with a residential occupier

He not only does not have any jurisdiction, but he has no authority.
he cannot over ride statutory law, so it is interesting that he is going to make a "non binding" decision.
non binding on whom? himself or you or the surveyor or all of you together?

Thank you very much for your reply des8 , all of what you say makes total sense to me, and was my understanding of the Act, but it would appear that the Surveyor was expecting our objection to the adjudication, as within one hour of receiving the adjudicators letter asking for a response to my email stating the adjudication wasn`t valid , he sent back a number of documents which he believes means the adjudication is allowed.

Firstly, he sent to the adjudicator, a copy of the Terms and Conditions which he claims he sent to us, (which he didn`t!), which state at point 21 that if there was a dispute, adjudication would be used under the Housing Grants, Construction and Regeneration Act of 1996...we never received this contract, what we received was an email, which laid out his qualifications, his experience and the costs of pay of each employee...why would he send us that email, if he had already sent us the contract which contains the same details re rates of pay? He is lying!

This is Clause 21 upon which he is relying:-

21. SETTLEMENT OF DISPUTES In the event of dispute over payment due to or works supplied by the Seller the first recourse is by mutual agreement. The parties are to provide relevant details in writing in the form of a letter or report. In the event of either party being dissatisfied with the proposed resolution the matter is to be referred to Adjudication under the Housing Grants, Construction and Regeneration Act 1996 or the scheme as appropriate. Notwithstanding the provisions of the Act the purchaser, if the loosing party is to pay the Adjudicator’s fee in full and reimburse the Seller with its related costs calculated at normal charge out rate and any reasonable third party changes incurred by the Seller. In the event of court proceedings being required to enforce payment or define responsibilities or whatever then the cost involved in preparation and pursuance of such proceedings will be charged by XXX at XXX normal charge out rates and the loosing party is liable for those costs in full together with any associated court or third party costs and interest. XXX will determine the adjudicating body. XXX retain the right to choose the small claims court procedure if appropriate. As of 01.06.15 our charge out rates are as follows: Category A Principal or Director - £175 Category B Chartered Engineer or equivalent £105 Category C Design Engineer or equivalent £ 85 Category D Assistant Engineer or equivalent £ 70 Category E Senior Technical or Clerical £ 65 Category F Auto Cad Technician - £ 55 Category G Clerical - £ 45



The Surveyor then sent this email in response to the Adjudicators email, wherein the adjudicator accuses us of `challenging his adjudication`:-

Dear Mr XXXXXX In respect of the jurisdictional challenge from XXXX and your invitation to make a representation. A. I do not consider the contracted works to fall within the Act clause 105 (2) (b) The works relate primarily to:- 1. Structural Engineer’s reports in connection with remedial works to buildings one of which is residential, two are not. 2. Flood protection measures 3. The conduct of a claim in respect of subsidence damage to non-residential buildings. 4. Consultations requested in writing relating to or loosely connected with the above.

The Act states…

2) The following operations are not construction operations within the meaning of this Part _

(a) drilling for, or extraction of, oil or natural gas .

(b) extraction, (whether by underground or surface working), of minerals; tunnelling or boring, or construction of underground works, for this purpose.

I consider that the agreement between XXX and XX falls outside of (b) above because it is not a mineral extraction contract. B. XXX standard conditions of contract (appended) specifically refer disputes to adjudication. XX is well aware of this. Through contact with the office XX (or XX) found out that I was away sitting a diploma examination. I subsequently explained the difference between adjudication and arbitration with specific reference to XXX XXX and why I preferred adjudication. This is evidenced by an email …

For either A or B above I consider XX’s challenge to be without merit. In respect of XX’s reference to householders being exempt from adjudication I understand that this is no longer the law. In consideration of the above I respectfully request that you continue with the adjudication.

Kind regards

The above letter from the Surveyor, is full of untruths! He states "I do not consider the contracted works to fall within the Act clause 105 (2)" This is the wrong Section of the Act, isn`t it clause 106? All of the works relate to mining subsidence on my property, which is my house and 2 barns which had permission for conversion granted in 2008. The Surveyor is trying to make out they are separate properties , they are not, they all form part of my prime domicile. The Flood reports had already been completed by my Partner and had to be done before Planning permission would have been granted. The two non residential units he refers to, are as I said, my two barns which form part of my prime domicile.

The surveyor then goes on to quote the Act, which doesn`t mention mining, as I believe he is quoting the incorrect section of the act? He should be referring to the clause which states mining is exempt from the adjudication process. Mr XXX then claims that he had a telephone conversation with either myself or my partner, wherein he explained the difference between adjudication and arbitration, yet he doesn`t know whether the conversation was with myself or my Partner, that is because the conversation never happened! We would have had no need to have ever asked him that question and Mr XXX is telling untruths in order to get the adjudicator to rule in his favour! He finishes by saying that my reference to householders being exempt from adjudication, is no longer the law, are you able to tell me if that is true please and give me your opinion on whether or not you feel adjudication is exempt given Mr XXX responses?

Many thanks for all of our help, it is really appreciated.

[Donny462]

I forgot to add the email wherein Mr XXX details all of his experience and qualifications and also the hourly rates of himself, and his employees.

It is a lengthy document, so I am just copying and pasting his rates of pay and that of his employees, but am happy to post the whole document should you wish to see it. I do not know why he would have sent this email, if, (as he claims), he had already given us the Terms and Conditions! The truth of the fact is, he didn`t send them to us.

Dear Mr XXX
Further to our telecom I have pleasure in outlining my qualifications and experience below…

My current charge rate is £200/hour + VAT.

I have the facility available to use staff employed within my company to assist with the preparation of drawings and calculations, where possible for the mitigation of fees, for the following charges.

Category B Chartered Engineer - £105
Category C Design Engineer - £ 85
Category D Assistant Engineer - £ 70
Category E Senior Technical - £ 65
Category F Auto Cad Technician - £ 55
Category G Clerical - £ 45

If you require anything further please let me know.

Kind Regards

[des8]

Your main problem is the lack of time to marshal your defence.
If the award (if the adjudicator proceeds) goes against you, you could then initiate litigation.

Regarding the present situation you could point out that it is established that an adjudicator does not have jurisdiction over a dispute arising under an agreement or contract which is not a construction contract within the meaning of section 104(1) of the HGCR Act.

There is case law ( Fence Gate Ltd v James R Knowles Ltd [2001].) in which it was held that an appointment under which a consultant provided evidence of fact as a witness and assistance, as an architect or engineer, in the conduct of an arbitration, was not a contract for construction operations nor for work in connection with construction operations; it was a contract for work in connection with an arbitration. In other words "Disputes relating to payment for appearing as a witness of fact and for assisting at an arbitration are not disputes "in relation to construction contracts" in accordance with s105 of the Act and therefore an adjudicator does not have jurisdiction to act in relation to these."

It remains possible, however, that parties to a contract will incorporate adjudication or HGCR Act-based payment terms into the contract which are not construction contracts as defined under the HGCR Act, in which the terms apply as a matter of contract but not statute.
It is possible for a contract to apply both to construction operations and to matters which are not construction operations. In that event, the HGCR Act applies only to that part of the contract which relates to construction operations.5 S.104(5) of the HGCR Act.

What that last bit means is that altho' your contract incorporates the adjudication process. it can only apply to construction contracts.
From the details you post it seems your contract was not a construction contract but one of a consultant providing evidence of fact as a witness and assistance, as a surveyor, in the conduct of an arbitration (but my understanding may be incorrect on this point as I am not entirely sure about the reason for the appointment)
The fact your contract refers to adjudication is only of consequence to those parts which are construction operations.



Whether or not the two barns are within the curtilage of your property and could be classed as residential is something which most probably can only be decided by a court

[Donny462]

Your main problem is the lack of time to marshal your defence.
If the award (if the adjudicator proceeds) goes against you, you could then initiate litigation.

Regarding the present situation you could point out that it is established that an adjudicator does not have jurisdiction over a dispute arising under an agreement or contract which is not a construction contract within the meaning of section 104(1) of the HGCR Act.

There is case law ( Fence Gate Ltd v James R Knowles Ltd [2001].) in which it was held that an appointment under which a consultant provided evidence of fact as a witness and assistance, as an architect or engineer, in the conduct of an arbitration, was not a contract for construction operations nor for work in connection with construction operations; it was a contract for work in connection with an arbitration. In other words "Disputes relating to payment for appearing as a witness of fact and for assisting at an arbitration are not disputes "in relation to construction contracts" in accordance with s105 of the Act and therefore an adjudicator does not have jurisdiction to act in relation to these."

It remains possible, however, that parties to a contract will incorporate adjudication or HGCR Act-based payment terms into the contract which are not construction contracts as defined under the HGCR Act, in which the terms apply as a matter of contract but not statute.
It is possible for a contract to apply both to construction operations and to matters which are not construction operations. In that event, the HGCR Act applies only to that part of the contract which relates to construction operations.5 S.104(5) of the HGCR Act.

What that last bit means is that altho' your contract incorporates the adjudication process. it can only apply to construction contracts.
From the details you post it seems your contract was not a construction contract but one of a consultant providing evidence of fact as a witness and assistance, as a surveyor, in the conduct of an arbitration (but my understanding may be incorrect on this point as I am not entirely sure about the reason for the appointment)
The fact your contract refers to adjudication is only of consequence to those parts which are construction operations.



Whether or not the two barns are within the curtilage of your property and could be classed as residential is something which most probably can only be decided by a court

Thank you so much once again for your reply @Des8.

The situation was this....we had been involved in arbitration, wherein the arbitrator had instructed that an Independant Expert be appointed to give a report on our property, (this was after he`d instructed that the RICS appoint a Surveyor, and it was found that the RICS do not offer this service!), we then spoke to the Surveyor who has now attempted to bring the adjudication against us, and he assured us he was more than capable of doing what was required. The Coal Authority objected to him doing the report as they said he had gone up against them previously, therefore wasn`t independant. The Surveyor assured us that we could pick who we wanted and that the Coal Authority could not object, he also told us in the below letter dated 31st January 2017,, that the Coal Authority would be obliged to cover our experts fees...i.e his fees , so how he can now state we are responsible for his fees, we really do not know. He has stated several, both verbally and in writing that the CA will have to pay his experts fees.

So in a nutshell,yes, you are correct, he was a consultant providing evidence of fact as a witness and assistance, as a surveyor , in the conduct of arbitration. Nothing more.

Can I please ask, If the adjudicator decides to go ahead with the adjudication, do we have to abide by it? If it goes ahead, and we abide by it and lose, is he then able to make us pay ? This surveyor made so many errors it is unbelievable, and because of his negligence and errors, he lost us a great deal of money...far far more than he is trying to claim from us. He hoodwinked us into allowing him to do the reports by saying our previous arbitration had suffered greatly due to a lack of expert evidence. We have sent in a complaint of gross negligence against him, but that is currently being investigated.

Do you think it is worth my while to write to the RICS and ask them to sort this out, as it is them who wrongly appointed an adjudicator? I should also add that we know this adjudicator and the surveyor know each other well, so I feel he cannot be unbiased...added to which, he appears to be taking it personally the fact that we have questioned the validity of the adjudication.

Any further advice you can give, will be gratefully received.

Many thanks

[Donny462]

Sorry, I forgot to add the email in which the surveyor clearly states the CA are obliged to pay our experts fees.

XXXXXXXXXXXXX.co.uk> Subject:...

31 Jan 2017 at 17:33


Dear XXXX

The fact remains that the Award did not make proper provision for the expert appointment.

The CA are no nearer sorting this out after approaching 2 months.

You are entitled to protect your own interests.

If the CA do not accept me as independent they will have to sort out one to their liking and risk further legal action to resolve matters in the event that we disagree.

This may be by another claim, including this unresolved issue, or an application to court.

The CA are obliged to cover your expert’s fees.

In the meantime I suggest that we formulate the next claim.


Kind Regards
XXXX