Received a Notice of Intent to Apply for Adjudication

[Donny462]

des8 , can I ask a question please? I am currently preparing the submissions I have to put in to the adjudicator by 7th October.

The surveyor was initially engaged to do a report as specified by the arbitrator in the Final Award of an arbitration...the surveyor is saying that as the Final Award had been made, he cannot have been doing his report as part of an arbitration, and therefore the adjudicator has jurisdiction. My point is that the arbitrator asked for the report to be done as part of his Final Award in the arbitration, therefore , the report must be accepted as part of the arbitration, surely? Please can you let me have your thoughts on this? Thank you .

[Donny462]

Thank you very much des8

[des8]

Just say to the adjudicator that he may wish to suspend his consideration in view of your rescission.

[Donny462]

Hi des8, I will be sending the email and letter to the surveyor this evening and so will also be copying the adjudicator in it. Do I ask the adjudicator to suspend the adjudication,....I'm not sure how to word it to him to annoy him the least so would be really grateful of your advice, yet again . Thank you.

[Donny462]

des8 , brilliant, thank you very much

[des8]

Fine, I would just amend the last sentence by deleting the words in red:
"....... but these statements made by you being false are evidence of negligent misrepresentation as per s.1 of the Misrepresentation Act 1967......"

[Donny462]

Hi des8,
Would you please just look at my letter below to the surveyor rescinding the contract and see if you think it is ok? Many thanks.


Dear Mr XXXX

Having taken advice on the `contract` between ourselves, I am rescinding that contract as per the Misrepresentation Act 1967, on the grounds that after us expressing our concerns regarding your charges, and expressing you to quite clearly that we could not afford to pay them, you assured us on a number of occasions, (both written and orally), that we would not have to pay your charges, and that the Coal Authority were obliged to pay them.

You had by your own admission dealt with many similar cases, so we relied on your assurances as an expert with lots of experience. These numerous assurances induced us to enter into the a contract with you, but these statements made by you being false are evidence of negligent misrepresentation as per s.1 of the Misrepresentation Act 1967, and I am entitled to rescind the contract.

Yours sincerely

[Donny462]

Thank you des8 , will do that, and ok, I won't tell the adjudicator about my complaint. Good advice as always

[des8]

read receipt is a way of knowing that your email has been received and read.
Google "read receipt +your email system eg gmail/hotmail etc

I shouldn't bother telling adjudicator about your complaint to RICS, he'll think you are grabbing at straws and possibly irk hoim even more

[Donny462]

comments in red
Good luck with that.
I don't guarantee it will work, or there might be other actions you could take, but it is the way I would be going

Thank you Des8 again for your help...as I`ve said before, thank you really doesn`t seem enough, I am so grateful to you

Could I just ask a couple more questions please?.

Firstly, what do you mean by send "read receipt" ?

Without Legal Beagles and wonderful people like you, I think a great deal of us would be in trouble legally speaking .

With regards to the surveyor, had I not been taken into hospital on and off over the last year, we would have lodged a formal complaint against him with the RICS for his negligence and professional misconduct, I had gone as far as emailing the RICS for a form (the website option for downloading the form wasn`t working), and they emailed me back with the form before this current action was being taken by the surveyor. I now intend to go ahead with the complaint, it is worth informing the adjudicator that I will be making a complaint against the surveyor? Or is that a bad idea :/

Thank you and sorry for taking so much of your time .

[des8]

Dear Des8,

Thank you as always for all of your help and advice, I really would be lost without you.

I shall write to the surveyor and rescind the contract, can I just email him to do that? Also, do I have to do anything else at this stage with regards to rescinding the contract, such as log it anywhere, or complete any forms etc to submit somewhere?
Email is fine send "read receipt", but follow up with hard copy mailed first class with free certificate of posting Do NOT send it "signed for"

Yes, right from the beginning we told him that we couldn`t afford his fees, (he charges more than most solicitors, in fact, more than most barristers too!), there was no way we could have afforded that. Right from the beginning he told us that the CA were obliged to pay his fees...it was only when he lost the arbitration and it became obvious that the CA were not going to pay him, that he then started to chase us for it. Additionally, after losing the arbitration, he told us we should contest it in court, I paid for a barristers opinion, the barrister told us we had virtually no chance of succeeding should we pursue it through the Courts, the barrister wanted £5000.00 on account to just begin to prepare it for court, plus we would have had the surveyors fees for preparing it for court, and had we lost, (which we were pretty much certain to do), we would have also had the CA`s costs to pay, yet despite all of that, the surveyor told us he believed the barrister was wrong, and pressed very strongly for us to take it to court. Thank god we didn`t.

Unfortunately, very naively, we didn`t check out his credentials, we believed what he told us and his flashy website etc.

When I copy the adjudicator in the letter rescinding the contract, do I ask him to halt his deliberations? Also, do I mention again in the letter to the adjudicator that I feel he has no jurisdiction? Suggest he might like to halt his deliberations. no point in labouring the jurisdiction question

With regards to any problems that arise because I was engaging with the adjudication process, I had no idea that I could refuse to do so? I just believed that it was a legal process that I had to adhere to? Unfortunately that is all too common a scenario. Peeps don't know, and can't IMO be expected to know all about all the laws. Hence there are lawyers, who most people can't afford!

Thank you again for your help, I will wait until you get back to me to write to the surveyor rescinding the contract.

comments in red
Good luck with that.
I don't guarantee it will work, or there might be other actions you could take, but it is the way I would be going

[Donny462]

I think your next move should be to write to the surveyor rescinding the contract as per the Misrepresentation Act 1967, on the grounds that on a number of occasions he assured you that you would not have to pay his charges
Presumably you had pointed out you could not afford or were concerned about his fees.
He had, by his own admission, dealt with many similar cases (did you check that?), so you relied on his assurances as an expert with lots of experience.
These numerous assurances induced you to enter the contract with him..
But these statements being false are evidence of negligent misrepresentation as per s.1 Misrepresentation Act 1967 and you are entitled to rescind the contract

Copy in the adjudicator and advise him so he can halt his deliberations and not run up unnecessary costs.
But prepare your Response to the Referral so you can submit it if necessary by 7^th October 2019.... no need to tell him you will have that document ready!


Your problems could be that it is sometime since you found out his assurances were incorrect (however you were not aware of the possibility of rescinding the contract) and rescission should take place as soon as possible.
Also your actions subsequent to discovering the survey fees may be a problem in that they possibly affirm the contract.
It may be argued that by engaging with the adjudication process you have agreed to the terms of the contract.

I really can't see any alternative move, other than wait for adjudicators decision and then challenge in court, but you can do that if the rescission doesn't work anyway

Dear Des8,

Thank you as always for all of your help and advice, I really would be lost without you.

I shall write to the surveyor and rescind the contract, can I just email him to do that? Also, do I have to do anything else at this stage with regards to rescinding the contract, such as log it anywhere, or complete any forms etc to submit somewhere?

Yes, right from the beginning we told him that we couldn`t afford his fees, (he charges more than most solicitors, in fact, more than most barristers too!), there was no way we could have afforded that. Right from the beginning he told us that the CA were obliged to pay his fees...it was only when he lost the arbitration and it became obvious that the CA were not going to pay him, that he then started to chase us for it. Additionally, after losing the arbitration, he told us we should contest it in court, I paid for a barristers opinion, the barrister told us we had virtually no chance of succeeding should we pursue it through the Courts, the barrister wanted £5000.00 on account to just begin to prepare it for court, plus we would have had the surveyors fees for preparing it for court, and had we lost, (which we were pretty much certain to do), we would have also had the CA`s costs to pay, yet despite all of that, the surveyor told us he believed the barrister was wrong, and pressed very strongly for us to take it to court. Thank god we didn`t.

Unfortunately, very naively, we didn`t check out his credentials, we believed what he told us and his flashy website etc.

When I copy the adjudicator in the letter rescinding the contract, do I ask him to halt his deliberations? Also, do I mention again in the letter to the adjudicator that I feel he has no jurisdiction?

With regards to any problems that arise because I was engaging with the adjudication process, I had no idea that I could refuse to do so? I just believed that it was a legal process that I had to adhere to?

Thank you again for your help, I will wait until you get back to me to write to the surveyor rescinding the contract.

[des8]

I think your next move should be to write to the surveyor rescinding the contract as per the Misrepresentation Act 1967, on the grounds that on a number of occasions he assured you that you would not have to pay his charges
Presumably you had pointed out you could not afford or were concerned about his fees.
He had, by his own admission, dealt with many similar cases (did you check that?), so you relied on his assurances as an expert with lots of experience.
These numerous assurances induced you to enter the contract with him..
But these statements being false are evidence of negligent misrepresentation as per s.1 Misrepresentation Act 1967 and you are entitled to rescind the contract

Copy in the adjudicator and advise him so he can halt his deliberations and not run up unnecessary costs.
But prepare your Response to the Referral so you can submit it if necessary by 7^th October 2019.... no need to tell him you will have that document ready!


Your problems could be that it is sometime since you found out his assurances were incorrect (however you were not aware of the possibility of rescinding the contract) and rescission should take place as soon as possible.
Also your actions subsequent to discovering the survey fees may be a problem in that they possibly affirm the contract.
It may be argued that by engaging with the adjudication process you have agreed to the terms of the contract.

I really can't see any alternative move, other than wait for adjudicators decision and then challenge in court, but you can do that if the rescission doesn't work anyway

[Donny462]

Will respond tomorrow

Thank you des8 , it makes me wonder if it`s even worth my while spending hours poring through reams of paperwork to find the proof to back up my case when he clearly hadn`t even read what I sent him today as he answered far too quickly ...it seems it`s `jobs for the boys` and he is protecting a fellow Member of the RICS as I don`t see how he could have ruled in the surveyors favour today...even the surveyor admitted he`d done work as part of an arbitration , yet the adjudicator discounted it. I really am lost now, and don`t know what to do :/

[des8]

Will respond tomorrow