Is an adjudicator's late decision enforceable?
The answer depends on the governing adjudication procedure, jurisdiction and facts. Distinguish the deadline for reaching the decision from the obligation to communicate a completed decision promptly.
Secure a valid extension before expiry; if lateness occurs, analyse making, communication and continuation of the appointment separately
The ordinary statutory period is 28 days, calculated from referral under the applicable rules and subject to permitted extension. A decision reached on time but communicated shortly afterwards may be valid where the applicable procedure requires prompt or forthwith delivery. A decision first reached after the deadline is exposed to challenge, but the effect of lateness has not been expressed uniformly in every authority or jurisdiction. Check whether the parties agreed an extension, continued participating, revoked or replaced the adjudicator, suffered material delay, or relied on a different contractual rule.
| Issue | Position |
|---|---|
| Decision reached within time | Proceed to communication analysis |
| Prompt communication after completion | May remain valid under applicable wording |
| Decision first reached late | Enforcement risk |
| Written extension agreed | Apply the extended deadline |
| Replacement adjudicator appointed | Original authority may have ended |
Build the deadline chronology
Record receipt of the referral, the applicable starting rule, original deadline, every agreed or referring-party extension, the date the decision was completed and the date and method of communication.
Starting the period
Historic views competed on dispatch and receipt of the referral. Apply the governing Scheme or contractual wording and preserve objective evidence of receipt rather than assuming a rule from a different procedure.
Ritchie Brothers
The Inner House of the Court of Session held that the Scheme requirement for the adjudicator to reach his decision within the period is mandatory, reversing the more permissive decision at first instance.
Barnes and Elliott
The decision was enforced where it had been made within time and communicated two days later, completion and communication being treated as separate stages.
Two-stage analysis
| Issue | Question |
|---|---|
| Stage 1 | When was the adjudicator's decision actually completed? |
| Stage 2 | When and how was that completed decision communicated? |
| Extension | Was a permitted extension agreed before expiry? |
| Appointment | Had the appointment been revoked or replaced? |
| Conduct | Did the parties continue without objection after expiry? |
| Governing law | Which court and procedural provisions apply? |
Hart Investments
On one view, a decision reached after the unextended deadline was a nullity. That proposition should be read as confined to the facts of that decision rather than as a universal result.
Dalkia Energy
The decision had to be reached within the mandatory period, with a short additional period available for prompt communication after completion.
Communication must be prompt
A completed decision should be sent immediately or as soon as the governing procedure requires. Administrative convenience, fee collection or avoidable delay may undermine reliance on a separate communication stage.
The adjudicator should retain a dated final document and an auditable dispatch record. A later assertion of earlier completion may be disputed.
Extensions
Seek and record any extension before the deadline. State the exact revised date and whether it covers reaching the decision, communication or both. Do not rely on silence or informal ambiguity where written agreement is required.
Party response to impending delay
A party should state promptly whether it agrees an extension, reserves a timing objection or seeks a replacement. Strategic silence followed by a later challenge may raise waiver or election arguments, depending on the law and facts.
Deadline sequence
Identify the applicable adjudication rules.
Prove referral receipt and calculate time precisely.
Record every valid extension and revised deadline.
Monitor progress without seeking merits indications.
Confirm whether the decision was completed within time.
Check whether communication was prompt and compliant.
Identify revocation, replacement, waiver and prejudice issues.
Present the complete chronology at enforcement.
Authorities
| Authority | Citation | What it decides |
|---|---|---|
| Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd | [2005] CSIH 32 | This is the Scottish appellate approach to a decision made outside the period. |
| Barnes & Elliott Ltd v Taylor Woodrow Holdings Ltd and George Wimpey Southern Ltd | 2003 | Completion and communication are separate stages. |
| Hart Investments Ltd v Fidler | [2006] EWHC 2857 (TCC) | A decision reached after the unextended deadline was treated as a nullity. |
| Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd | [2009] EWHC 73 (TCC) | Completion timing is mandatory and only a short period is allowed for communication. |