Received a Notice of Intent to Apply for Adjudication

[des8]

So the first thing to understand is that the adjudicator doesn't receive his fee if no adjudication takes place, so he is already disposed to rule against your objection to his authority.

You have to list what he was contracted to do.
Was there an agreed written schedule?
Then list what he actually did....you'll have to consult his report
Point out all the discrepancies and misdescriptions
Stress that the barns were within the curtilage (use that term) of your residence and regarded as part of your domestic buildings
Note the "milking shed" was only a shed 6x4
Point out flood risk already done

You need to line up ALL your points, together with proof where available

I would also refer back to your challenge to his authority.
Mention:
- the lack of a signed contract and the failure to supply a copy of contract terms and conditions, together with the statement that his services would not cost you anything as per his letter of 31.01.2917.
He held himself out as the expert and you relied on his letter when engaging him.
Stating you would be reimbursed by the Coal Board was possibly misrepresentation as per the Misrepresentation Act 1967, so the contract might be rescinded.

-Additionally this contract was not individually negotiated and clause 21 might be deemed an unfair term as per The Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”). This is because you as a consumer would not be aware of the import of such a clause,and and you were not given the opportunity to examine the T&Cs prior to instructing the claimant.

-emphasise again that he was acting as an expert witness as he admits in his referral notice.
Mention "Fence gate Ltd v James R Knowles Ltd [2001] (which is important case law)

You can then challenge the assertion that the terms apply as a matter of contract, not statute.because clause 21 actually states "..... the matter is to be referred to Adjudication under the Housing Grants, Construction and Regeneration Act 1996 ......" but that as he was acting as an expert witness it cannot be referred to adjudication under that act.

Then hope!

[Donny462]

To give you further information, this is what the surveyor said in his referral notice as to the nature of the work:-

THE NATURE OF THE CONTRACT 12.
The nature of the contract was for expert advice relating to the adequacy of remedial works required to a residential property following mining subsidence. An outline of the issues can be seen in B3. XXX-V- XX_Referral Notice.docx Page 4 of 5 13. This was extended on several occasions including an instruction for XXX to act as an expert for XX in a General Arbitration subsidence claim against the Coal Authority for other buildings on the farm. 14. The issues were quite complex. A previous subsidence claim had been badly handled resulting in ambiguity as to the award. Further subsidence had occurred and was in fact still active. The Coal Authority appeared to have both mispresented and withheld evidence.

[Donny462]

Well I am absolutely astounded by recent developments! After the adjudicator asking for Schedules from both myself and the Surveyor by 5pm tomorrow evening in reference to my challenge against his adjudication, the Surveyor is obviously getting quite cross as he sent a rather pedantic email to the adjudicator, questioning several aspects of which the answers I thought were quite clear, he then stated the jurisdiction challenge had yet to be resolved...and the adjudicator wrote back saying as far as he was concerned, there were no further challenges to his jurisdiction...this after he is still awaiting the schedules requested by 5pm tomorrow evening to ascertain Mr XXXX`s actual role!

From: XXXXXXXXXXXXXXXXXX
Date: Tuesday, 24 September 2019 at 16:22
To: XXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXX
Subject: 2750_140(E)52060_39;; XXX-v-XX Jurisdictional challenge / Timetable

Dear Mr XXXXXX
I note that XX/XX have not responded to your questions as to who is representing XX and what their relationship is.
I also note that XX has substantially represented XX throughout.
Also there is the matter of the jurisdictional challenge still to be resolved.
The proposed amended timescale will cause a clash with an overseas trip 04-11/10/19.
Whist I may able to deal with some matters by internet during that period, a proper reply to a substantial response would be difficult if at all possible.
Please find attached the revised CEDR claim form in respect of the barn conversions.
It was omitted in the rush this morning. It is relevant because the CEDR refused to accept the claim on the householders scheme and insisted that a general claim be made.
This provides further evidence that the matter cannot possibly relate to a householder.
Also please note that the preliminary report was duplicated. In this morning’s attachments.

Kind Regards
XXXXX XXXX

XXXXXXXXXXXXXXX
To:XXXXR, XXXXXXX XXXXXXXX

24 Sep at 20:04


Dear XXXX XXXXXXXX and Mr XXXX
Thank you for your respective emails received today below.
Jurisdiction
With regard to MsXXXXXXX’s challenge to my jurisdiction dated 20^th September 2019, this was dealt with in my email dated 23^rd September 2019. I’m not aware of any further challenges at this time.
Revised Timetable
Even if I were not prepared to allow the full extension requested by Ms XXXXXXXXI am minded to permit an extension, such that it would likely clash with your trip aboard and the opportunity for you to submit a Reply to the Response. To avoid this, may I suggest the following revised timetable:

1. Response to Referral by 5pm on 7^th October 2019
2. Reply to Response by 5pm on 18^th October 2019
3. Date for my Decision extended to 4^th November 2019

I look forward to yours and Ms XXXXXXXX’s agreement, thank you.
Regards

[Donny462]

Firstly I trust you make a speedy recovery from your surgery.

I have to go out now, so will refer back to you later today, but one point I noted immediately concerns the adjudicator's reference to a contractual agreement to use adjudication.
Besides you not being supplied with the terms and conditions of the contract, that clause states "..... the matter is to be referred to Adjudication under the Housing Grants, Construction and Regeneration Act 1996 ......" but that act is not applicable in this situation

Thank you for your well wishes des8 and for your further help...thank you just doesn`t seem enough.

Since writing to you last, the surveyor has now written to the adjudicator again, he was supposed to make any submissions re my email to the adjudicator yesterday, I thought the email from the adjudicator was quite clear, but Mr XXXX states he is confused about what the adjudicator wanted.This is his email to the adjudicator today, which incidentally was sent at 10.27am, rather than 10.00am as the adjudicator directed :-,

Date: Tuesday, 24 September 2019 at 10:27
To: XXXXXXXXXXXXXXXX and XXXXXXXXXXXXXXX
Subject: Jurisdictional challenge
Dear Mr XXXXXX
I am unsure what matters you wish me to respond to by 10 am.
The initial contact was a telephone call from XXX XXXXX. Apart from the farmhouse, which for the avoidance of doubt XXX, accept is the principal residence of XX, XX referred to the award in respect of the farmhouse but also previous awards in respect of the farm generally.
The farm consist of a few acres of land used for grazing horses, the brick farm house, two brick farm buildings (barn and dovecote) and a milking shed.
The matters he complained of was damage caused to the grazing land by flooding and structural damage evidenced by cracking in the three brick buildings.
The initial XXX inspection of the farm house was made by Mr. X XXXXX (XX), who drafted a significant part of the initial report. XX is no longer with XXX.
There is significant evidence to corroborate the fact that the farmhouse was not the only matter under consideration but indeed a very small proportion effectively completed after submission of the preliminary report which is attached.
I note the following section.

1. Because neighbouring properties have also been affected by subsidence, it is reasonable to believe that the barn and dovecote at Park House Farm will be affected also.

The work invoiced was carried out on a time basis and can be found in the RN appendices.
The attached CEDR claim form signed by XX is clear evidence that the damage to the barns was by far the major issue.
Also attached are various reports which clearly provide overwhelming evidence the works relate to damage to the barns and general subsidence and not the farmhouse.
Kind Regards

He seems to be labouring on the point that the two barns were the major issue, nevertheless, it was all work done as an expert, in an arbitration. In actual fact, Mr XXXX walked out on the job over a year ago and left us to sort it out, we have only just managed to resolve the matter with the CA, (work in fact starts on my house next Monday), as there was no `expert`to advise on how the problems to the house should be rectified, the CA brought in another `expert`, who found that works needing to be done were considerably more than Mr XXXX had stated in his report...in fact in monetary terms, they were 4 times more than Mr XXXX had said, and 4 times the work which was needed on the barn and dovecote. Mr XXXX as well as referring to the barn and dovecote, refers to a `milking shed`, I think this gives a false impression, as rather than it being a milking shed, (which you would assume many cows would go into to be milked), it is in actual fact a tiny shed of approx 6` x 4`,, which would be hard pushed to house one cow, let alone a herd! I believe that many years ago, it may have been used to hold a couple of milk churns whilst awaiting pickup, but Mr XXXX is trying to give a false impression of the scale of work he carried out.

I hope you have a good day and look forward to hearing from you later, thank you .

[des8]

Firstly I trust you make a speedy recovery from your surgery.

I have to go out now, so will refer back to you later today, but one point I noted immediately concerns the adjudicator's reference to a contractual agreement to use adjudication.
Besides you not being supplied with the terms and conditions of the contract, that clause states "..... the matter is to be referred to Adjudication under the Housing Grants, Construction and Regeneration Act 1996 ......" but that act is not applicable in this situation

[Donny462]

Your submission to the would be adjudicator should instruct him that you are challenging his jurisdiction on several grounds.
These appear briefly to be;
1) it was not a construction contract as the surveyor was only acting as an expert witness
2)it was a residential premise
3) it involved coal mining
Plus all the other reasons why you should not be paying this surveyor eg he wrote it would not cost you!

You will of course have to elaborate a bit!

Bailiffs and possession orders aren't actioned without prior warning, so don't worry on that score.

Whilst not allowing to let your submission to the adjudicator slide, perhaps you should be seeking the help of a solicitor versed in this type of case.
If you have legal expenses insurance, you might get some help there or you may be able to negotiate a Conditional Fee Arrangement

I keep saying it, but thank you so much again for your help and advice des8. I was taken back into hospital earlier today and had an operation this afternoon, before I went into hospital, I received a reply from the adjudicator saying he was going ahead with the adjudication because basically, he was taking the surveyors account of things as being truthful, I was able to reply before going into hospital and then when I came back from theatre, there was a much more sympathetic email back from the adjudicator and I believe he may be changing over to our way of thinking. I would be very grateful if you would have a look at our exchanges and give me your opinion please.

This is the email received from the adjudicator early this morning, stating the reasons why he is going ahead with the adjudication:-

XXXXXXXXXXXXXXXXXXXXX
To:XXXXXXXXXXXXX
Cc:XXXXXXXXXXXXX

23 Sep at 07:38
Dear XXX XXXX and Mr XXX

Further to M XXXXXXX’s challenge to my jurisdiction dated 20^th September 2019 and Mr XXXX’s submission concerning the same, I have considered the matter and conclude as follows:

The challenge is in to parts.

1. Ms XXXXXXX argues that mining disputes are exempt from the adjudication process. The dispute concerns the non-payment of invoices as described by the notice of adjudication dated 16^th September 2019, relating to a contract for professional services in connection with remedial works required to various properties. I accept Mr XXXX’s argument at point A of his letter dated 20^th September 2019.

1. Ms XXXXXXX also argues that the right to adjudicate does not extend to construction contracts with home owners for works to their principal private dwelling. Mr XXXX argues that this requirement is no longer the law. As I understand, the works relate mainly to those listed in Mr XXXX’s letter dated 20^th September 2019. In addition, I understand from the correspondence in the Referral that Ms XXXXXXX intended to sell the barn conversions (email 19.10.17). Consequently, the contract between the parties cannot be said principally to relate to operations on a dwelling which Ms XXXXXXX’s occupies or may or may not intend to occupy.

Furthermore, Mr XXX argues that XXX`s standard terms and conditions forming part of the contract specifically refer disputes to adjudication. As I understand, there is no dispute between the parties concerning the terms of the contract, which contains a clause (clause 21) stating that the parties have the right to adjudication in the event of disputes. Therefore, the parties are prima facie bound by this clause, which incorporates the Scheme for Construction Contracts.

In view of my findings and at Mr XXXX’s request, I advise the parties that I intend to continue with the adjudication.

Whether or not Ms XXXXXXX intends to make a submission concerning the dispute is a matter for her, but I would again advise her that if she does not make a submission, I am obliged to and will continue to make my Decision based on the papers before me. In this regard, I would be grateful if Ms XXXXXXX would advise me accordingly, thank you.

Regards

I replied to this email using the information you kindly supplied me with in your last message, below is my email to the adjudicator:-

To: XXXXX XXXXX
Cc:XXX XXXX

23 Sep at 12:31

Dear Mr XXXXXX

I am in receipt of your email dated 23rd September and note it`s contents.

Firstly, I would like to say that I am not challenging you personally, so please don`t take offence, rather the aspects of the Law regarding jurisdiction.

Obviously, I do not agree with your responses to my challenge, I still believe that the adjudication has no jurisdiction.

Since receiving Mr XXXX`s response to the challenge, I have had the contract he supplied you with looked at, (as was stated in the previous letter to yourself, I haven`t received that contract at any time from Mr XXXX but I shall deal with that when I send in my submissions), and taking into account clause 21 of that contract, Mr XXX did not have a Constructional Contract with myself.

I am told 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.

You state that you believe that there is no dispute in relation to the contract provided to you...there was no dispute as the first time this contract was seen by myself, was when Mr XXX sent it to yourself and copied me in it, but now I have a copy of it, I can state that Mr XXXX was a consultant who provided evidence of fact as a witness and assistance, as an `expert`, in the conduct of an arbitration, it 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. Disputes relating to payment for appearing as a witness of fact and for assisting in 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 those.

Additionally, I believe that mining disputes are exempt from the adjudication process, I do not accept Mr XXX`s argument at point A.

Furthermore, I believe that even if Mr XXXX`s contract is a construction contract (which I do not believe that it is), the right to adjudicate does not extend to construction contracts with homeowners for works to their principal private dwelling. Mr XXXX argues that this requirement is no longer Law, I believe that it is, I further believe that the buildings concerned all form part of my prime domicile, so therefore are exempt from adjudication.

Obviously I wish to make submissions in the dispute, but as I am currently in hospital, and due to have surgery this afternoon, I respectfully, wish to ask for an extension in time, as there is no way at this time that I can physically access all of the documentation to make submissions to yourself, in time for 27th September.

Kind regards

XXXX

When I came back onto the ward after my operation at 5.04pm, I had received the below email, which I think looks like the adjudicator may now be listening to what I am saying and taking notice, (thanks to you):-


To: XXXXX XXXXX
Cc:XXX XXXX

23 Sep at 15:54
Dear Ms XXXXXXX

Thank you for your email below.

Firstly, thank you for letting me know about your circumstances, I wish you well.

1. With regard to the professional services which Mr XXXX has stated he provided in his letter dated 20^th September 2019, they would appear in my view to fall under Section 104 (2), which relates to various professional services in connection with construction operations and provides:

‘Reference to this Part to a construction contract include an agreement:

(b) to provide advice on building, engineering…’

in relation to construction operations’

However, you claim that Mr XXXX provided services ‘…as a witness and assistance, as an `expert`, in the conduct of an arbitration, it 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’. This is different to that claimed by Mr XXXX.

1. With regard to contracts with homeowners for works to their principal dwelling, based on the list of services provided by Mr XXXX in his letter dated 20^th September 2019 I am led to understand that the contract does not principally relate to services on a dwelling which you occupy or intended to occupy, otherwise I accept your argument. Mr XXXX is incorrect about the law.

Nevertheless, the contract contains an adjudication clause (clause 21) in which the terms apply as a matter of contract, not statute. Your previous email made no reference to not having received a copy of the contract from Mr XXXX. However, I note that you have stated that you will deal with the contract and clause 21 in your submission to the Referral.

You have requested an extension in which to submit your Response to the Referral. However, you have not stated how much further time you require, therefore I would be grateful if you would advise me by 5pm today, so that I may issue further directions accordingly.

It would assist me if the parties could both set out precisely the services that Mr XXXX provided in a schedule for my consideration. I direct the parties to do this by 5pm on Wednesday 25^th September 2019.

I invite Mr XXXX to make submission to me on any matter stated above and in Ms XXXXXXX’s email that he wishes to make by 10am tomorrow.

I look forward to hearing from the parties.

Regards

As I had just come back onto the Ward after my operation, I didn`t feel up to writing much, so I apologised and sent the below email, which will have actually arrived 6 minutes after his 5pm deadline, so I hope he will accept it, but I wasn`t able to send it any earlier :-


To: XXXXX XXXXX
Cc:XXX XXXX
23 Sep at 17:06


Dear Mr XXXXXX

Thank you for your email and well wishes, they are much appreciated.

I'm afraid I'm not up to replying to your email in full at the moment as I'm only just back on the ward, I would really appreciate it if you could allow me an extension of 9 days, meaning I would have my submissions to you by 5pm on 7th October, I shall do my best to have them to you earlier if I can.

Kind regards

XXXXX XXXXXXX

As the adjudicator has asked for a schedule of precisely what services Mr XXXX provided, how much detail will he want me to go into? For example, Mr XXXX states he did a Flood Risk Plan, would I provide evidence that the Flood Risk plan was actually done some 11 years ago by my Partner when planning was submitted and agreed? He also states he `found` a milk shed wasn`t on our plans, when in actual fact it is on the actual plans stamped as `passed`, by the Planning Dept of our local Council, so would I submit a copy of the plans and emails verifying what I am saying, or do I just give a list of what he did, and state it was all work as an `expert` as part of an arbitration ? Sorry for all of the questions, but I think if I get this presented correctly, it may make a big difference.

Many thanks once again.

[des8]

Your submission to the would be adjudicator should instruct him that you are challenging his jurisdiction on several grounds.
These appear briefly to be;
1) it was not a construction contract as the surveyor was only acting as an expert witness
2)it was a residential premise
3) it involved coal mining
Plus all the other reasons why you should not be paying this surveyor eg he wrote it would not cost you!

You will of course have to elaborate a bit!

Bailiffs and possession orders aren't actioned without prior warning, so don't worry on that score.

Whilst not allowing to let your submission to the adjudicator slide, perhaps you should be seeking the help of a solicitor versed in this type of case.
If you have legal expenses insurance, you might get some help there or you may be able to negotiate a Conditional Fee Arrangement

[des8]

Your submission to the would be adjudicator should instruct him that you are challenging his jurisdiction on several grounds.
These appear briefly to be;
1) it was not a construction contract as the surveyor was only acting as an expert witness
2)it was a residential premise
3) it involved coal mining

You will of course have to elaborate a bit!

Bailiffs and possession orders aren't actioned without prior warning, so don't worry on that score.

Whilst not allowing to let your submission to the adjudicator slide, perhaps you should be seeking the help of a solicitor versed in this type of case.
If you have legal expenses insurance, you might get some help there or you may be able to negotiate a Conditional Fee Arrangement

[Donny462]

Regarding payment of an adjudication which goes against you, the Act does not provide the winner with a means of enforcement.
This means, in event you fail to pay, they will have to initiate court action in the Technology and Construction Court.
This isn't like other courts as there is no hearing and the order to pay will be issued without reference to you!
When the order is served on you, almost the only challenge open to you is that the adjudicator clearly had no jurisdiction.
To make that challenge you need to show you reserved the right to challenge the adjudicator's jurisdiction during the adjudication proceedings both in correspondence and in your submissions. If you continue with the adjudication proceedings without reserving your position in relation to the jurisdictional challenge, it could be said you waived your right to rely on it in future.

So ensure you make your challenge to the adjudicator's jurisdiction in every submission you make, and yes, I would register my concerns with RICS

Once again des8 , thank you for your help and advice.
I am a little confused as to what exactly my reasons are now for saying the adjudicator has no jurisdiction, could you please just confirm that I am right in saying that I should 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 in that Mr XXX was a consultant providing evidence of fact as a witness and assistance as a surveyor , in the conduct of an arbitration.
Additionally, that the right to adjudicate does not extend to construction contracts with home owners for works to their principal, private dwelling...or is this second statement not correct now?
Please can you advise whether I should be pointing anything else out in my submissions?

Finally, when you state that if the adjudication went against me, and I failed to pay that the Court, that the order to pay will be issued without reference to me...does this mean I could have bailiffs turn up at my door to be paid, or a possession order against my property issued without my knowing?

I am really sorry, but this sort of thing just really goes over my head , and without your help, I would literally be trying to swim through mud!

Thank you so much again for your help.

[des8]

Regarding payment of an adjudication which goes against you, the Act does not provide the winner with a means of enforcement.
This means, in event you fail to pay, they will have to initiate court action in the Technology and Construction Court.
This isn't like other courts as there is no hearing and the order to pay will be issued without reference to you!
When the order is served on you, almost the only challenge open to you is that the adjudicator clearly had no jurisdiction.
To make that challenge you need to show you reserved the right to challenge the adjudicator's jurisdiction during the adjudication proceedings both in correspondence and in your submissions. If you continue with the adjudication proceedings without reserving your position in relation to the jurisdictional challenge, it could be said you waived your right to rely on it in future.

So ensure you make your challenge to the adjudicator's jurisdiction in every submission you make, and yes, I would register my concerns with RICS

[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

[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

[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]

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

[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.