Received a Notice of Intent to Apply for Adjudication

[Donny462]

Many thanks des8 , your help has been invaluable.

The engineer has to make his submissions next, by 18th October...I'm expecting them to read like something by Hans Christian Anderson! I will keep you informed, and thank you again.

[des8]

I would not respond to either of them as there is no point.

Regarding the rescission you do not have to do anything until the engineer tries to get payment from you.
If you refuse he will have to initiate a court claim in an attempt to obtain the money.
At that point your defence will be that the contract was rescinded because of misrepresentation and so you owe nothing.

That will be a decision you will have to take when the full picture emerges

[Donny462]

So the engineer thinks it inappropriate (but doesn't deny it!) and the adjudicator thinks that a dispute concerning invoices arising from the contract are not affected by your rescinding.

Fine.... let them get on with it as there is nothing you can do to change their minds
See what the adjudicator comes up with as a solution.

If it is unacceptable to you, you could then not pay and wait for the engineer to initiate a court claim.
At that point your defence is that you rescinded the contract and let the court decide the outcome.

There will be cost implications to take into account, but until you know the result of the adjudicator's decision there is nothing to be done.

Thank you des8 for your advice again. The engineer cannot deny it, as it`s the truth, but he isn`t going to admit that is he :/ As for the adjudicator, I think the engineer could say the sky is purple and he would agree with him! I am now certain that the adjudicator will find in favour of the engineer, let`s face it, even when the engineer admitted himself that a large portion of the works carried out were as part of an arbitration, the adjudicator still ruled in his favour and said he didn`t think they were, so therefore he still had jurisdiction!

Can I ask please, is there anything I need to do to rescind the contract, other than what I have already done? Do I have to fill in any Court forms or anything?

Many thanks for all of your help throughout this...I don`t think I am going to win this, but without your help and advise, I would have been totally lost.

Do you think I should reply to the adjudicators email , or just leave it?

[des8]

So the engineer thinks it inappropriate (but doesn't deny it!) and the adjudicator thinks that a dispute concerning invoices arising from the contract are not affected by your rescinding.

Fine.... let them get on with it as there is nothing you can do to change their minds
See what the adjudicator comes up with as a solution.

If it is unacceptable to you, you could then not pay and wait for the engineer to initiate a court claim.
At that point your defence is that you rescinded the contract and let the court decide the outcome.

There will be cost implications to take into account, but until you know the result of the adjudicator's decision there is nothing to be done.

[Donny462]

Dear des8

The engineer has replied to the adjudicator regarding my rescinding of the contract. Below is his response. Please could you advise me what to do now?


Dear Mr Xxxxxx

We consider it inappropriate for Ms Xxxxxxxx to rescind the contract at this stage and in any case, it is irrelevant to the adjudication.

The adjudicator has now also replied and told me that I`m not allowed to rescind the contract, please can you help me? This is the adjudicators email below:-


Dear Ms Xxxxxxxx and Mr Xxxx,

Ms Xxxxxxxx has stated that she rescinded the contract under s.1 of the Misrepresentation Act 1967 on the grounds stated in her letter dated 4^th October 2019.

The dispute clause in the contract and that referred to adjudication concerns payment of outstanding invoices under the contract. As such, a matter concerning misrepresentation under the MA 1967 does not come under the contract and is outside the scope of the adjudication. I therefore cannot consider it in this adjudication.

Regards

I do not understand how the adjudicator can say he cannot consider my rescinding of the contract because the dispute clause in the contract, and the matter referred to adjudication concerns payment of outstanding invoices under the contract, when the misrepresentation itself was regarding the fact the engineer told me repeatedly that we would not have to pay his fees, and that they would be paid by the CA?

[Donny462]

if he doesn't understand...............?

You have rescinded the contract, which unwinds the matter to the position you were in before the contract was agreed.
Perhaps the adjudicator is thinking that the rescission is not certain, as for innocent and negligent misrepresentations, there is no absolute right to rescind.
The remedy under the Misrepresentation Act is either rescission or damages in lieu. The court decides which of these remedies is the most appropriate and equitable. If it goes to court and damages are awarded the contract remains in force.
I would have thought the matter was now in doubt and the adjudicator should be looking to mitigate his costs.

It is unlikely the engineer will accept your rescission, but how he chooses to challenge it remains to be seen.
He will probably say he was expressing an opinion about the CA paying his fees, whereas from what you have written it would seem that he was stating it as a fact.

Just respond to him saying that as the original contract has been rescinded, you felt he might be looking to keep his charges to a minimum by suspending his consideration of the case.

Thank you des8 for your advice once again.

The engineer stated it as fact both orally and written. When Mr XXXX told the CA of his appointment, they wrote and said that they wouldn`t agree to using Mr XXXX as he`d acted against them previously, so they didn`t class him as independent, and that they wouldn`t be paying his fees. Mr XXXX replied that they were unable to stop him from doing the report, and that he was carrying on with the report as per the terms of the arbitration, he then wrote to me with copies of both letters and told me to ignore what Mr XXXXX of the CA had said, as the CA were obliged to pay his fees. I voiced my concern after the CA had specifically said they wouldn`t pay his fees, and he again reassured me that the CA HAD to pay his fees. He assured me several more times, again both orally and written, that the CA would be made to pay his fees. I took him at his word as he`d already told me he`d done 20 + arbitrations against the CA , so I naively assumed he knew what he was doing.

[des8]

if he doesn't understand...............?

You have rescinded the contract, which unwinds the matter to the position you were in before the contract was agreed.
Perhaps the adjudicator is thinking that the rescission is not certain, as for innocent and negligent misrepresentations, there is no absolute right to rescind.
The remedy under the Misrepresentation Act is either rescission or damages in lieu. The court decides which of these remedies is the most appropriate and equitable. If it goes to court and damages are awarded the contract remains in force.
I would have thought the matter was now in doubt and the adjudicator should be looking to mitigate his costs.

It is unlikely the engineer will accept your rescission, but how he chooses to challenge it remains to be seen.
He will probably say he was expressing an opinion about the CA paying his fees, whereas from what you have written it would seem that he was stating it as a fact.

Just respond to him saying that as the original contract has been rescinded, you felt he might be looking to keep his charges to a minimum by suspending his consideration of the case.

[Donny462]

Hi des8 ,

As you suggested, I wrote to the adjudicator advising him that I was rescinding the contract and suggesting he may wish to he may wish to postpone his deliberations....this morning he has replied saying he doesn't understand what I mean? I am unsure how to reply, please could you advise me?

[Donny462]

". Our `expert` told us the CA would have to accept his report...(I actually have it in writing from him), but the CA didn`t, and wouldn`t accept it."

more misrepresentation! or was that after he had been appointed?

This was before he did the report, we told him that the CA wouldn`t accept him as he wasn`t independant, he told us they HAD to accept him as he was an expert in his field as he was a professional, and as such, he should be trusted to give a professional, unbiased opinion.

[des8]

". Our `expert` told us the CA would have to accept his report...(I actually have it in writing from him), but the CA didn`t, and wouldn`t accept it."

more misrepresentation! or was that after he had been appointed?

[Donny462]

This is the section of his award dealing with the matter in question:-

90. Whilst in my view some of the cracking in the house is likely to be cosmetic I am concerned that some of it may have been caused by movement and that given the Respondent has not in my view conclusively proved that the damage has not been caused by coal mining it is possible that it has.
91. This puts me in a difficult position because I am acting as arbitrator and not expert and therefore, in the absence of any report by a structural engineer or surveyor, I am in no position to assess if the damage has been caused by mining subsidence, the work that might be required to rectify the damage, nor to specify what should be done to rectify any damage. However in my view the Respondent has not proved the damage is not caused by mining subsidence. Page 22 of 23
92. Therefore, I order that the Respondent carries out the following: (1) Agrees with the Claimant a suitable independent structural expert to be appointed within 28 days (excluding bank holidays) of the date of this award. (2) Should the Parties be unable to agree a suitable expert an application should be made to the President of the Institute of Structural Engineers for them to make the nomination which will be binding on the Parties. (3) Pays for the independent structural expert to assess the house and make recommendations for the rectification and repair of any damage the expert determines should be carried out. That assessment is to be made within 28 days of the appointment of the expert. (4) Both parties are to be bound by the expert’s decision regarding the nature and extent of remedial works to the house. (5) The Respondent will carry out at its own expense the rectification and repairs the independent expert decides has been caused to the house by coal mining subsidence. The Respondent will not be liable for any defects or damage the independent expert decides has not been caused by coal mining subsidence. Costs (6) Section 5(1)(a) of The Coal Mining Subsidence (Arbi

[Donny462]

I can't understand why the arbitrator should order a structural engineer's report after issuing his final award, unless he was prepared to issue an supplementary award.
If the report was ordered by and submitted to the arbitrator, I would agree the report was part of the arbitration process.

I`m afraid that`s exactly what he did. The report was then submitted to the arbitrator, albeit the CA then wouldn`t accept it as they didn`t consider our expert` to be impartial as he had already gone against them several times apparently, so the CA then appointed another `expert`, whose report has been adhered to, and in fact works started this week. Our `expert` told us the CA would have to accept his report...(I actually have it in writing from him), but the CA didn`t, and wouldn`t accept it. It`s all such a mess, and I feel like I have been surrounded by idiots in this arbitration :/

[des8]

I can't understand why the arbitrator should order a structural engineer's report after issuing his final award, unless he was prepared to issue an supplementary award.
If the report was ordered by and submitted to the arbitrator, I would agree the report was part of the arbitration process.

[Donny462]

To be clear:
Are you saying one of the terms of the Final Award when issued required a survey report?

Yes, that`s correct. The arbitrator said he wasn`t qualified as a Structural Engineer and the property needed a report doing by a Structural Engineer to determine whether it was coal mining subsidence which had caused the damage. as such, he ordered that a structural Engineers report be gained. I`m sorry, I`ve just realised that I keep calling the `expert` a surveyor, he is actually a structural engineer.

[des8]

To be clear:
Are you saying one of the terms of the Final Award when issued required a survey report?