Received a Notice of Intent to Apply for Adjudication

[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]

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]

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

[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

[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]

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]

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 .

[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]

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.

[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]

Thank you so much for coming back to me des8, this whole thing is stressing the life out of me, and without your help and advice, I would be totally lost! Thank you again.
Firstly, no, there wasn`t an agreed written schedule. . Can I ask, does all of this go in the letter I have to have back to the adjudicator by 5pm this evening, (writing this as 00.58 on 25th Sept), to clarify, this is what he has asked for :-

"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 25th September 2019"

If so, can I mention in it about the surveyors possible misrepresentation under the Misrepresentation Act 1967? Can I also mention about clause 21 possibly being deemed an unfair term as per the UTCCR? I am asking about these two points as I`m unsure whether you are just giving me that information to use in future, or whether it can be used now?

I have to have my submissions to the adjudicator re the surveyors notice for adjudication by 5pm on 7th October 2019, can I ask at what stage do I mention the ridiculously high costs the surveyor is attempting to charge? Or am I not able to do that? The last `expert` only charged £10,000.00 in total for a much bigger and more detailled task , yet this guy is trying to charge 3 times that amount!

I know I keep saying it, but thank you, you are quite simply amazing! The surveyor was told right from the beginning that we couldn`t afford his charges, and all the way through he has said the CA have to pay them...now the CA have refused, he is trying to get them from us. He told us repeatedly that our previous arbitration had suffered greatly as we didn`t have an experts opinion, then he came on board as the `expert` and made huge mistakes in the arbitration, which lost it for us!

Thank you so so much .

[des8]

Thank you so much for coming back to me des8, this whole thing is stressing the life out of me, and without your help and advice, I would be totally lost! Thank you again.
Firstly, no, there wasn`t an agreed written schedule. . Can I ask, does all of this go in the letter I have to have back to the adjudicator by 5pm this evening, (writing this as 00.58 on 25th Sept), to clarify, this is what he has asked for :-
"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 25th September 2019"
If so, can I mention in it about the surveyors possible misrepresentation under the Misrepresentation Act 1967? Can I also mention about clause 21 possibly being deemed an unfair term as per the UTCCR? I am asking about these two points as I`m unsure whether you are just giving me that information to use in future, or whether it can be used now? Put them in your letter
I have to have my submissions to the adjudicator re the surveyors notice for adjudication by 5pm on 7th October 2019, can I ask at what stage do I mention the ridiculously high costs the surveyor is attempting to charge? Or am I not able to do that? The last `expert` only charged £10,000.00 in total for a much bigger and more detailled task , yet this guy is trying to charge 3 times that amount! Yes use that... you need to demonstrate his unreasonableness
I know I keep saying it, but thank you, you are quite simply amazing! The surveyor was told right from the beginning that we couldn`t afford his charges, and all the way through he has said the CA have to pay them...now the CA have refused, he is trying to get them from us. He told us repeatedly that our previous arbitration had suffered greatly as we didn`t have an experts opinion, then he came on board as the `expert` and made huge mistakes in the arbitration, which lost it for us!
Thank you so so much .

Comments in red.
Do make sure you refer by title to that case I mentioned.
That is case law where it was found that whilst between the parties there was a contract (the JCT IFC 84 standard form of contract) which included an adjudication clause, that clause was of no effect in respect of services as a witness. The judge held that the adjudicator did not have jurisdiction to rule upon the entitlement of the surveyor for the services rendered by it as a witness of fact or having assisted at an arbitration

Good luck.... I'll look in again around lunchtime.

[Donny462]

Comments in red.
Do make sure you refer by title to that case I mentioned.
That is case law where it was found that whilst between the parties there was a contract (the JCT IFC 84 standard form of contract) which included an adjudication clause, that clause was of no effect in respect of services as a witness. The judge held that the adjudicator did not have jurisdiction to rule upon the entitlement of the surveyor for the services rendered by it as a witness of fact or having assisted at an arbitration

Good luck.... I'll look in again around lunchtime.

Thank you so much again des8 for your recent posts helping me to submit responses to the adjudicator. Apologies that I am only just getting back to you but I`ve had awful problems with reception on my mobile in here, plus I`ve been trying to do the response to the adjudicator by flicking from one screen to the next, all the time worried I was going to lose it all off the screens!
I have sent it in now but think i`ve made a mess of it, it`s been so difficult trying to do it with no access to my files and only on my phone, so I think its rather disjointed but just hope it is good enough for the adjudicator to take note...some things I`ve had to leave as I just don`t have the evidence in here, it is all at home, but at least I can include it in my submissions to be in by 7th October .

I can`t thank you enough, as I was saying to my Mum, having you there to support me and help/advise me, has made me feel as though i`m not on my own in all of this, thank you .

Below is what I`ve sent to the adjudicator...I hope it`s ok.


Dear Mr XXXXXX

Thank you for your email of 24th September 2019.

I confirm that I agree to your revised timetable.

With regards to you stating that my challenge to your jurisdiction was dealt with in your email of 23rd September, I am confused, as in it you stated that what I`d said regarding the works covered by Mr XXXX, differed to what he`d said he did and you said :-

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 25th September 2019.

I assumed this was so you could determine in what capacity Mr XXXX had been instructed.

Mr XXXX was instructed as an expert to advise on details surrounding an arbitration, nothing more, he admits this in his Referral Notice at Point 5 :-

5. Following a phone call from XX acting on behalf of XX an offer to provide services as an expert structural engineer was sent by email by XXX, the referring party, for the works on Thu 08/12/2016 12:01. (B1-2)

then again at point 12 in the Referral Notice:-

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.

The works Mr XXXX was asked to do were:-

1. Mr XXXX initially completed a report as an `expert`for the Farm house, detailling his opinion as to whether the Farm House had suffered from coal mining subsidence or not as an `experts` report had been ordered as part of the Arbitrators Final Decision.

2. Mr XXXX then acted in an experts capacity within an arbitration for our barns , he states that he also carried out details for flood protection methods. The Flood risk assessment for the two barns was actually completed by my Partner in December 2007, as part of the information needed for Planning Permission to convert to residential. As a result, the Planning Department put conditions onto the two barns that the internal floor levels had to be raised to combat any potential flooding, and also that all electrics had to come from the roof down, for Mr XXXX to claim he did all of this work is a fabrication, and even if he had, it would still fall under works done by an expert as part of an arbitration. (copy of details specified under planning conditions to be forwarded once I am allowed home from hospital).

3. Mr XXXX also makes mention of works done for a milking shed, this again is a fabrication and an exaggerration. The `milking shed` as Mr XXXX calls it, rather than it being a large building which multiple cows went into to be milked, is in fact a small shed of approximately 10` x 6`and required no works doing by Mr XXXX.

Mr XXXX states that my barn and dovecote are separate entities to the Farmhouse, I disagree, as both properties fall within the curtilage of my residence and are regarded as part of my domestic buildings and as such, they are exempt from jurisdiction of adjudication .

Mr XXXX did a great deal of work which didn`t need to be done. He asked for reports on the property from us going back to 1998! He also repeated reports, and did work that his employees had already done, all to inflate his fees, the end result is that his fees are extortionate, but I shall cover that in more detail in my submissions due by 7th October. However, even after all of that, the arbitration where Mr XXXX acted as the expert, largely failed, I believe this was due to Mr Wade`s negligence and misconduct ! Whereas the previous arbitration in which I acted for myself succeeded, even though Mr XXXX said it had been largely let down by not having an experts opinion, which was why he was taken on in the first place! It should be noted that the previous `expert` working on an arbitration for us, dealt with a much bigger and more detailed claim for us and only charged £10,000.00, (which was paid by the CA), whereas Mr Wade has submitted invoices totalling almost £30,000.00!

Mr XXXX did no work other than that of an expert providing expert reports and dealing with an arbitration.

My Partner rang Mr XXXX initially to ask if he was able to do the experts report needed. Mr XXXX told us that he`d dealt with around 20 CA arbitrations over the years, and that he had prepared expert reports in respect of similar cases on around 30 occasions and had also given evidence in court as an expert witness in relation to these reports when required. This is also verified in his email to me dated 8th December 2016. From all that Mr XXXX said, both orally and in writing, he appeared to to be the `expert` needed to do the job.

Mr XXXX mis-led us right from the start. In his initial telephone conversation with my partner, Mr XXXX told him that his `expert` fees would be paid by the CA as per the rules under the Coal Mining Act of 1994. In his email to us dated 8th December 2016, he had laid out his Firms charges. My partner telephoned Mr XXXX and told him once again that we could not afford to pay his fees, and he again assured us that the CA would pay his `experts` fee , he did this several times orally, and also in writing, the first time he confirmed this in writing was in his email dated 31st January 2017, wherein he clearly states:-

"The CA are obliged to pay your experts fees."

There was never a signed contract, and Mr XXXX never supplied me with a copy of his Terms and Conditions, had he done so, what need was there then for his email of 8th December 2016 wherein he not only detailed his qualifications and experience, but also included the rates of pay of himself and his staff? Mr XXXX held himself out as the expert, and I relied on his letter when engaging him. Stating that the CA would pay his experts fees, was possibly misrepresentation, as per the Misrepresentation Act 1967, so the contract could well be rescinded.

Additionally, even if I had been given the Terms and Conditions, as this contract was not individually negotiated, clause 21 might be deemed an unfair term as per the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), because as a consumer, I would not have been aware of the importance of such a clause, and I was not given the opportunity to examine the Terms and Conditions prior to instructing the claimant.

Mr XXXX was acting as an expert as he admits in his Referral Notice. Mr XXXX has confirmed orally and in writing many times that he is acting as an expert, I will leave the majority of the emails for my submissions due on 7th October as I am not able to access all of them on my phone, which is what I am currently working on in hospital, but his email dated 4th August 2017 is one example, wherein he states:-

"We are not acting as agents, but consulting engineers in an expert capacity".

I still do not believe that an adjudicator has any jurisdiction in this case, 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 in the conduct of an arbitration, was not a contract for construction operations, nor for work in connection with construction operation; it was a contract for work in connection with an arbitration, . It was found that whilst between the parties there was a contract which included an adjudication clause, that clause was of no effect in respect of services as an expert witness. The judge held that the adjudicator did not have jurisdiction to rule upon the entitlement of the surveyor for the services rendered by it as a witness of fact, or having assisted at an arbitration

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

I apologise to the adjudicator if this email seems disjointed, but I am working under difficult conditions in that I only have access to my phone in hospital, and I am trying to collate all of the information whilst going from one screen to another, my submissions due by 7th October will hopefully be much more ordered.

Please find attached the Flood Risk report from our Planning Application, and also copies of some of the emails relevant to this email.

Kind regards

[des8]

Well, if you can collate and write that well whilst in hospital recovering from a procedure, you're doing ok.
Now you can concentrate on your recovery
Good luck

[Donny462]

Phew!! Thank goodness I was able to get onto the forum! I have been trying all evening and kept getting a website about trending video`s every time I tried to get on Legal Beagles, I have no idea why... I was getting so worried des8 as I thought after all the help that you`ve given me that I wasn`t able to come on and thank you !! Well as you know, I managed to submit everything in time, thanks to you, and now the adjudicator is considering again whether he has jurisdiction or not, below is his latest email to myself and the Surveyor...lets hope he makes the right decision as the information supplied by the surveyor today, basically confirms that he acted as an expert witness in arbitrations, therefore the adjudicator should find that he has no jurisdiction...I`m not expecting the surveyor to give up without a fight, so I am expecting some nastiness from him next, I will keep you posted and thank you again for your help and good wishes :-

This is the adjudicators latest email :-

On Wednesday, 25 September 2019, 17:56:41 BST, XXXXXXXXXXXXXXXXXXXX> wrote:

Dear Ms XXXXXXXX,

Thank you for your email below.

I apologies for any confusion but I requested the information concerning the services provided to assist me further in my review of the evidence generally. Based on the evidence submitted by you and Mr XXXX at the time I concluded that I had jurisdiction. In view of the information and contentions that you have now provided I will need to revisit that position. Before doing so I would request that Mr XXXX makes submission to me concerning the points you raise in further support of your challenge.

I would therefore request that Mr XXXX makes submission to me by 5pm tomorrow, thank you.

Regards