Received a Notice of Intent to Apply for Adjudication

[Amethyst]

Apologies for the issues with the site last night - if it does go down ( and hopefully we fixed the issue ) then we try and post on our Facebook page as soon as we are aware, so worth checking that if you ever can't get on xxx

[Donny462]

Apologies for the issues with the site last night - if it does go down ( and hopefully we fixed the issue ) then we try and post on our Facebook page as soon as we are aware, so worth checking that if you ever can't get on xxx

Thank you for that information des8, I didn`t realise that you have a Facebook page, so that`s good to know...I thought it was something wrong with my phone.

[Donny462]

Apologies Amethyst, I thought I was replying to Des8, when it was you who`d posted, thanks again for the info.

[Donny462]

Hi des8,

The surveyor has now replied to my email of yesterday. He has told a lot of lies I`m afraid, most of which I can argue against and provide proof, but would you please take a look at my responses and advise where necessary? Many thanks.

His replies to my latter are prefixed by #, my replies are prefixed by *

Dear Mr XXXXX

For ease of reference I have inserted comments wherever possible adjacent to DUs points raised.



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.
# Agreed. I note that XX considers the term farmhouse to include the out building and pasture.

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).
#The extraction of coal caused the ground levels to be lower than those at the time of the 2007 flood risk assessment. #The planning approval contains the condition 18 below. This supercedes the flood risk assessment

#18. The finished floor levels of the proposed conversion shall be a minimum of 600mm above the site ground level unless otherwise agreed by theLocal Planning Authority.

#REASON

#So as to reduce the risk to the properties in the event of flooding.


#Further the planning approval has several conditions (06, 07, 09, 12, 13, 14, & 19) which required satisfying before #commencement of the works. If these conditions have not been satisfied then the commencement works which have #been accepted by building control could be deemed unlawfull in which case the approval will have timed out.

#I have seen no evidence that the conditions have been satisfied.

#These are fundamental significant matters which apparently are either not considered or understood by XX.

#Given that it is XX`s expressed intention to sell the barns (Appendix A13) these issues are extremely relevant.

*One day, whilst dealing with the arbitration, Mr XXXX rang us and said he had something important to discuss with *barns were `ripe for conversion to residential`, we informed him that planning had been granted in 2008, he seemed *very disappointed, I do not understand why Mr XXXX is still concerning himself with my Planning Conditions, *Planning was gained in 2008, some 8 years before we even knew of Mr XXXX`s existence. All conditions have been *satisfied and the buildings are now under the control of building regulations. One of the conditions was that we had to *have a piece of wall built using the intended bricks and lime mortar, this was built, examined by Building Reg`s and *passed, it is still standing in my open ended shed and we have taken a photo for the adjudicators proof.

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 Wade 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 Wade. The term “milking shed” came from XX not XXX. (Appendix A 19/20)

#There was no work done by XXX other than including it on the drawing. It was not included on XX’s planning #drawings and therefore had not been properly considered in terms of access and ground raising. Below is an extract #from XXX drawing 2750-01b.

*I have been unable to include the copy fo the drawing Des8 as there is too much information on it that identifies who *the parties involved are.

*The shed was included on the original drawings, but was included as the shed that it is, rather than as part of the barn *conversion.

#There are two problem buildings which are shown dashed. The milking shed was not included on the approved #drawing.

*The shed was included on the original drawings, but was included as the shed that it is, rather than as part of the barn *conversion.

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 .

#The Act says…

#(2) A construction with a residential occupier means a construction contract which principally relates to operations on #a dwelling which one of the parties to the contract occupies, or intends to occupy, as his residence

#XX has stated that when the works were completed then she intended to sell the barn conversions. They could not #under any circumstances be construed as ever being part of her dwelling. It is inconceivable that an occupier could #simultaneously occupy three buildings, which begs the question as to which one, if any, she intends to occupy.

*I was only ever possibly selling the big barn, it was my intention to move into the smaller barn, (the dovecote), even *so, it is still all considered as part of my prime domicile.

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 XXXX`s negligence and misconduct, and it has resulted in us losing in excess of £100,000.00 ! 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 detailled claim for us and only charged £10,000.00, (which was paid by the CA), whereas Mr XXXX has submitted invoices totalling almost £30,000.00!

#I strongly repudiate any negligence , misconduct or carrying out any work which was unnecessary. There were #complicated issues to take into account. At no relevant stage, if at all, has XX complained about the invoices. XXX #fees were notified in writing at the outset. XX has instructed extra works on numerous occasions both verbally and in #writing. XX on 15/01/18 emailed…

Mr XXXX did many things he didn`t need to do, without being asked to, I have never complained about the invoices as I was told they would be paid by the CA, therefore, it was not down to me to query them, but the CA, should they have issue with them.

#With regards to the draft claim, we can only see two minor issues, the first being that you have included #XXX`s name on the claim when it is my property, so if you could omit XXX`s name, that would be great, the #second thing, is as I said, a very minor matter in that I bought the Farm in 1994, not 1995, apart from that, the #claim you have submitted is very good, again, thank you.

#These are not the words of someone who believes that XXX have behaved with negligence and misconduct.

*When I made those comments, I was unaware of all of the mistakes/errors and bad advice that Mr XXXX had given *us.

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

#The work carried out by XXX has been submitted as evidence. It has been made clear from the outset that other XXX #employees would be involved not least to mitigate fees.

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."

#I do not accept that XX can rely on the statement above in order to absolve herself of responsibility and note the #highlighted section above and extracted below.

&Why can`t I rely on that statement? It is quite clear in its understanding.

It should be noted that the previous `expert` working on an arbitration for us, dealt with a much bigger and more detailled claim for us and only charged £10,000.00, (which was paid by the CA

#I have told XX/XX on numerous occasions that XX would be responsible for payment of PWC fees. On one occasion #around 20/08/17 she said that she was going to benefit from her aunties estate, that a bungalow had been sold and #that she would settle XXX fees from the proceeds when probate was sorted.

*This is untrue! Mr XXXX had it made abundantly clear to him before he even started works that we would not be able *to pay him and he, in return, was clear in saying the CA were responsible for his fees. The comment about my *Aunties estate is untrue , at one time after the death of Auntie, Mr XXXX was asking me for information, I told him that *I was dealing with probate for Auntie`s estate, but it would shortly be sorted out, then I would be able to sort the *information out that he`d requested.

There was never a signed contract, and Mr XXXX never supplied us 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.

#XXX’s emails and invoices include the statement all works to be in accordance with our Standard Conditions of #Contract. She has seen this many times. I have discussed the difference between adjudication and arbitration with #XX, expressed my preference for adjudication and that was XXX’s preferred route to settle disputes. The reason #being for speed, focus and cost. It is not an option for mining subsidence claims which are covered by separate #statute.

*I had never seen the Terms and Conditions as stated by Mr XXXX prior to this adjudication. To say that he has *discussed the difference between adjudication and arbitration with me is a downlight lie…incidentally, in his previous *submissions he said he`d discussed it with myself or my Partner, now he is saying he`d discussed it with me, which is *it? It is neither as I`d never seen the Terms and conditions.! Mr XXXX`s own comment here proves this case is does *not come under the banner of having jurisdiction for adjudication in stating “…It is not an option for mining *subsidence claims which are covered by separate statute.” The whole of Mr XXXX`s works on this property were for *mining subsidence!

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

#In respect construction operations the Act says…

#105 Meaning of “construction operations”

#(1) In this Part “construction operations” means , subject as follows, operations of any of the following descriptions-

#(a) construction, alteration, repair, maintenance, extension, demolition or dismantling of buildings, or structures #forming, or to form, part of the land (whether permananet or not)

#It is XXX’s contention that the works carried out relate to alteration, repair and maintenance, chiefly in respect of the #barns. I accept that XX considers the house to include the barns within an entity but I believe she is misguided.

*I am unsure what to answer here? Please could you advise?

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 do not understand the relevance of “acting as an expert witness” and why it should be an issue in this dispute. The #reports and drawings clearly relate to construction operations within the definition of the Act. It is presumably the final #intention of XX to proceed with the conversions, or sell the barns, at which time the reports and drawings will be #required. I note that XX quotes and therefore must accept XXX XXX.

*The reports and drawings are all for the arbitration for coal mining subsidence, indeed, the drawing Mr XXX submitted *to the arbitrator clearly states NOT FOR CONSTRUCTION USE. Incidentally, the drawings Mr XXXX submitted, have *been copied from the plans submitted for Planning by XXXXX & XXXX, he has effectively stolen their plans as they *are copyrighted. Mr XXXX states that he assumes I will proceed with the conversions or sell the barns, at which time the reports and drawings will be required...no they won`t, we will use the drawings already done in 2008 and which were passed for planning! Mr XXXX`s were only used by him in the arbitration and clearly state NOT FOR USE IN CONSTRUCTION

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. If this is the case then would it not have been preferable to have sought an extension to the timetable in order to facilitate or drop the jurisdictional challenge and accept the adjudication? XX appears to have been intent on avoiding payment for a considerable period of well over a year.

*Mr XXXX knows perfectly well that I have been ill for some time now, he also knows it has entailed prolonged stays in *hospital, for him to make this comment is churlish and unnecessary.

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

[Donny462]

I wrote the adjudicator the following email to ask if I could reply to Mr XXXX`s comments:-

Dear Mr XXXXXX

I am in receipt of Mr XXXX`s responses to my email to yourself, dated 25th September 2019.

I respectfully ask if I can have the opportunity to reply to Mr XXXX`s comments as he has made a number of statements which are totally incorrect, and others which are blatant fabrications, and I feel it would be unfair for you to try and reach a decision regarding jurisdiction, without being in possession of the true facts.

Kind regards

I am gutted that he has refused to allow me to reply...the surveyor has deliberately tried to mislead him in that he has `cut off` the bit on the drawing which says NOT FOR CONSTRUCTION PURPOSES, but now the adjudicator won`t let me show him the truth!

This is the adjudicators response to my wanting to furnish him with the true facts:-

Dear Ms XXXXXXXX

Thank you for your email.

I will not be assisted by any more submissions concerning jurisdiction. If I need further clarification, I will let the parties know, thank you.

Regards

[des8]

If the adjudicator won't accept further submissions , so be it. If the matter eventually goes to court there will be no such restrictions on submitting evidence, but hopefully it won't reach that stage. Apologies for the delay in responding but I got caught up badly with the site's problem last night and only just back.

[Donny462]

des8 , please don't apologise, I appreciate that you are very busy, and am just grateful for all of your help.
I cannot understand why the adjudicator will not agree to my responses to the surveyors comments....how can he make a decision based on the information he already has, when I have told him the surveyor has lied and fabricated his replies? For example, he claims the plans he's submitted were for construction purposes, when in reality, they were used purely for the arbitration and he's largely copied my architects plans and stamped on them in capital letters are the words NOT FOR CONSTRUCTION USE? I'm just confused

[des8]

Sorry, but can't answer for the adjudicator!
Presumably he didn't want a court case fought out on his desk and believes he has enough evidence to make a decision.

[Donny462]

Thank you des8 , I'm sorry for going on, it's just so frustrating

[Donny462]

des8 , please could I ask your advice? This morning, the adjudicator wrote stating he basically didn`t agree with the property all forming part of my residence, nor did he agree that the adjudication was exempt because the claim fell under coal mining, however, he wanted further information with regards to whether Mr XXXX carried out the works as part of an arbitration. below is the adjudicators letter from this morning :-

Dear Ms XXXXXX and Mr XXXX,

With regard to further submissions and information concerning my jurisdiction, I comment with my findings below.

There is no dispute that a contract exists between the parties. However, there are three issues concerning the contract (1) do XXX’s terms and conditions apply; (2) if they do, does Clause 21 apply; and (3) is it a construction contract under the Construction Act.

Issue 1 – XXX’s terms and conditions

It is common ground that a telephone conversation took place between the parties in December 2016 in which Mr XXXX offered to provide services as an expert structural engineer. Mr XXXX then issued an email dated 8^th December 2016, the email contains among other things a brief statement of Mr XXXX’s professional qualifications, experience, and a list hourly rates for various members of XXX’s staff. At the bottom of the second page of the email it states, ‘All works to be in accordance with our Standard Conditions of Contract’. It is common ground that Mr XXXX did not attach a copy of the terms nor did Ms XXXXXX request a copy. Ms XXXXXX argues that she never received a copy of the terms, and there was never a signed contract. When agreeing to a contract it does not need to be signed by both parties to be legally binding. Following the email, XXX was instructed to carry services, consequently a contract was formed. In my view, Ms XXXXXX was bound by the email and the terms incorporated by reference, whether she read them or not.

Issue 2 – Clause 21

Mr XXXX argues that clause 21 applies which states that disputes may be referred to adjudication under the Construction Act. Ms XXXXXX disagrees arguing that the contract was not individually negotiated, therefore clause 21 might be deemed unfair under the UTCCR Regulations 1999, because as a consumer she would not have been aware of the significance of this clause being an adjudication clause. There would be some force in Ms XXXXXX’s argument were it not for the fact that I consider that the residential occupier exemption under the Construction Act does not apply to the contract, as detailed below. Therefore, clause 21 applies.

Issue 3 – Construction contract under the Construction Act

It is common ground that XXX was appointed for expert advice concerning the adequacy of remedial works required to various buildings, namely (1) residential farmhouse; and (2) two barns. Mr XXXX claims that further services were carried out concerning flood protection measures. Ms XXXXXX disputes this and claims that flood risk assessment for the two barns was completed by her partner in December 2007. In addition, Mr XXXX claims that further services were carried out concerning the conduct of a claim in respect of subsidence damage to non-residential buildings, and acted as agent in a General Arbitration subsidence claim against the Coal Authority for subsidence to the two barns. Ms XXXXXX has not commented.

Ms XXXXXX initially argued that (1) ‘…as mining disputes are exempt from this adjudication process (and this is in relation to Mining problems), additionally, the right to adjudication does not extend to construction contracts with home owners for works to their principal, private dwelling…’ This was later followed by (2) ‘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’. In support of her latter argument she relies on the case of Fence Gate Limited v James R Knowles Limited (2001).

In regard to Ms XXXXXX first argument (1) Mr XXXX asserts that the contract is not a mineral extraction contract and not caught by the exemption; and in relation to her second argument (2), Mr XXXX asserts that ‘I do not understand the relevance of “acting as an expert witness” and why it should be an issue in this dispute. The reports and drawings clearly relate to construction operations within the definition of the Act’.

I consider that XXX’s appointment for professional advice and assistance as a structural engineer, expert or otherwise, comes under section 104 (2) of the Construction Act. Because the services satisfy subsection (b): ’… to provide advice on building, engineering…’ However, the services must be ‘…in relation to construction operations’ as defined by section 105 of the Construction Act. On the basis of the case judgment relied upon by Ms XXXXXX, giving advice or factual evidence in relation to an arbitration is not providing advice in relation to construction operations even if the advice relates to building and engineering matters.

I do not concur with Ms XXXXXX’s argument that the two barns would come under principal dwelling, which she intended to sell on completion (email 19/10/17). Consequently, Mr XXXX persuades me that the contract cannot be said principally to relate to operations on a dwelling which Ms XXXXXX occupies or intended to occupy – the exemption under the Construction Act relating to residential occupiers does not apply.

Summary

The only issue that needs resolving is for me to be satisfied that the services provided by XXX were not for the giving of advice or factual evidence in “relation to an arbitration”. There is reference to an arbitration in the Referral, but I am unclear how this relates to the services provided by XXX. The invoices provided by XXX do not assist me in determining this.

I would therefore request that Ms XXXXXX and Mr XXXX make submission to me concerning this issue only by 1pm today. I will then reach my own conclusion. If part of the services relate to an arbitration it may be possible to sever those from the unrelated services.

The issues concerning my jurisdiction have taken up quite a lot of my time, and I am conscious of costs. Therefore, regardless of the arguments concerning my jurisdiction, I would ask the parties to give consideration to simply allow me to proceed with the adjudication and make my Decision concerning the parties dispute. If I am minded to resign my position, no doubt the matter will go to litigation. The courts are very keen for parties to attempt to settle disputes via alternative dispute resolution methods, such as mediation or adjudication, which are in comparison to litigation relatively inexpensive and straightforward.

I look forward to hearing from the parties

Regards

The only works carried out by the surveyor, were as a expert in providing a report as part of an arbitration, and then as an expert conducting an arbitration, I provided the adjudicator with all of the proof and the relevant reports, this was my reply to the adjudicator:-

Dear Mr XXXXXX

Thank you for your email of this mornings date.

The only works carried out by Mr XXXX were for use within arbitration, therefore, the adjudicator has no jurisdiction in these matters.

I refer you to Mr XXXX`s comment in his email dated 25th September 2019, which clearly proves he was engaged in relation to arbitration works, wherein he states :-

Also attached is the arbitration award which was the starting point for XXX services and was provided by XX to XXXX XXXXXX of XXX at the first inspection. This is provided for background information.

I further refer you to Mr XXXX`s report for the CA Arbitration dated 16th January 2017, wherein he states:

I have received my instructions from Ms XXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXI am instructed to…
a) Visit the site.
b) Make an assessment of the damage.
c) Review related documentation including an Arbitration Award
c) Prepare a Structural Engineer’s Report.
d) Indicate any defects and advise on remedial work.

He further states at point 4 and 5 of the report:-

4. The CA rejected the claim which went to Arbitration resulting in a Final Award in favour of XX dated 06.12.16.

5. The Award required that a suitable independent structural expert to assess the house and make recommendations or the rectification and repair of any damage the expert determines should be carried out.

Mr XXXX was the `expert` engaged to carry out the report detailed in point 5 as part of the arbitration.

I should point out that though the report says `DRAFT`, it was in fact submitted to the CA with those words on it.

I further refer you to `the Claim` dated 5th March 2018, as submitted by Mr XXXX for the arbitration, wherein at point 54-57, in response to the CA`s statement that the CA should not be held liable for any historic fees incurred by Mr XXXX, Mr XXXX states quite clearly:-

54 -57 –
The fees of X.. XXXX have been caused directly by the conduct of the CA in improperly dealing with the damage claims and failing to respond sensibly to correspondence from the Claimant.

Appendix E of that report relates to the Flood measures Mr XXXX suggests to be put in place, Mr XXXX is claiming that work was done separately to any arbitration work, this proves that it was not, it was all done as an `expert` as part of an arbitration, the same applies to the plans Mr XXXX states he drew, these were in fact copied from the plans drawn by our architects, XXXXXXXXXXXXXXXXX, those plans are subject to copyright laws, which Mr XXXX has breached. The plans we had drawn by XXXXXXXXXXXXXXXX are the ones which were submitted for Planning and were approved, the ones Mr XXXX did were purely for the arbitration and state on them in Capital letters, in the bottom right hand corner, NOT FOR CONSTRUCTION USE, (copy attached under the name of `Site Plan as proposed`) I note Mr XXXX `missed off` the portion of the plans stating NOT FOR CONSTRUCTION USE, in his email to yourself dated 25th September 2019, Mr XXXX argues they would be used should I decide to develop the barns in years to come, no, they will not, the plans will be used which had Planning Approval granted in 2008, copy attached, (Appendix C). I should state that Mr XXXX has had no involvement with our Planning Application which was approved in 2008, long before we even knew of Mr XXXX.

I attach copies of the reports done by Mr XXXX, all clearly demonstrate they were works done as part of an arbitration process, Mr XXXX cannot state he did any other works, as he did not.

Kind regards

Mr XXXX then replied also to the adjudicator, he freely admits some of the work relates to an arbitration, but claims he is still covered under the Terms and Conditions of his contract. He lies and says that I submitted the claim to the CA, it was in fact compiled by the surveyor, (which again I can prove), but it had to be signed by myself as the owner of the property, this was the surveyors response to the adjudicator:-

Dear Mr XXXXXX

XXX’s appointment following an arbitration award, attached, which made provision for an expert to examine damage to the farmhouse building.

The issue was what cracking had been caused by mining subsidence and which had not. The arbitrator was not expert in these matters and no expert evidence had been provided to assist the arbitrator. He commented as follows:-

91. This puts me in a difficult position as I am acting as arbitrator 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.



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 all 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. The assessment is to be made within 28 days of the appointment of the expert.

As the final award had already been published on 06/12/2016 then XXX’s works could not be said to be in relation to an arbitration as there was no arbitration in progress.

The CA refused to accept the appointment of XXX because XXX was involved in a case against them.

XXX’s works substantially related to the cause and remedy to structural damage manifested by cracking to the barns and farmhouse. In addition the flood risk implications in relation to the barn planning permission were considered.

It was the intention of XX to conduct any claim against the CA herself but after her claim failed she later instructed XXX to conduct an arbitration.

Until the CA rejected the claim made by XX on 11/07/2017 none of XXX works during the period leading up to the rejection could be deemed to be in relation to an arbitration. The attached email sent by XX on Wed 12/07/2017 01:48 provides clear evidence that the claim was made by XX

It is arguable that some, but not all or indeed a significant proportion, of XXX works between 11/07/2017 to 04/05/18 could be reasonably considered to be in relation to an arbitration.

Irrespective of any of the above XXX considers that all its works, whether in connection with an arbitration or not, are covered by XXX and dispute over fees can be referred to adjudication.

Kind Regards

After receipt of the surveyors email, I was confident that the adjudicator would rule that he didn`t have jurisdiction over most of adjudication as the surveyor freely admits he did work as part of an arbitration, so I was shocked to receive the adjudicators email stating he had found in favour of the surveyor, and basically ruled that NONE of the surveyors work related to an arbitration, despite the surveyor admitting it did! Below is the adjudicators response:-

Dear Mr XXXX and Ms XXXXXX

Thank you for your respective emails today concerning jurisdiction.

I am persuaded by Mr XXXX that XXX’s appointment, and the contract between the parties, was not for services in connection with an arbitration. I am therefore satisfied that I have jurisdiction.

I will not be assisted by any further submissions concerning this matter, thank you.

Meanwhile, I look forward to receipt of Ms XXXXXX’s Response to the Referral on 7^th October 2019.

Kind regards


des8 , please can you give me your opinion and advice as to how to reply? I am totally dumbfounded that the adjudicator has ruled in this way, despite the surveyors admissions to at least some of the work being done for an arbitration, please help me.

[des8]

Will respond tomorrow

[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]

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]

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]

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