May an adjudicator withhold the decision until the parties pay the adjudicator's fees?
An adjudicator cannot use unpaid fees to extend the statutory period for reaching and communicating the decision. Any agreed lien must operate consistently with the governing Act, Scheme and adjudication terms.
A fee lien cannot justify release after the statutory deadline, and its effectiveness depends on clear agreement and the applicable procedure
The authorities reject an adjudicator's unilateral right to withhold the decision for fees. Even where both parties accepted a lien term, the adjudicator could not delay communication beyond the period required by the governing procedure. A party should not assume that non-payment invalidates liability for the adjudicator's reasonable fees, nor that a short delay automatically nullifies the decision. Check when the decision was reached, when and how it had to be communicated, any valid extension, the appointment terms and whether the delay caused legal invalidity under the applicable authority.
| Issue | Position |
|---|---|
| No agreed lien | No unilateral withholding right |
| Agreed lien | Cannot override statutory timing |
| Decision made on time | Communication requirement still applies |
| Short late release | Validity depends on law and facts |
| Fee liability | Separate from enforceability of the decision |
Separate four questions
Determine when the adjudicator had to reach the decision, when it had to be communicated, whether withholding was contractually agreed and whether any delay affects validity. Fee recovery is a separate issue.
St Andrews Bay
The adjudicator had no unilateral right to withhold the decision for unpaid fees. A two-day delay was serious but did not invalidate the decision on the facts considered.
Cubitt Building
An agreed lien was criticised where its operation delayed release beyond the Scheme timetable. The decision was to be communicated as soon as possible after it was made.
Mott MacDonald
A lien that conflicted with the obligation to release the decision promptly after it had been reached was further disapproved.
Decision and communication
| Step | Required treatment |
|---|---|
| Reach the decision | Complete the adjudicative determination within the applicable period. |
| Communicate the decision | Deliver it as required by the contract or Scheme. |
| Valid extension | Record agreement to any permitted extension before expiry. |
| Reasons | Provide them where requested or required within the applicable process. |
| Correction | Use only the permitted slip-correction power and period. |
| Fee invoice | Do not make statutory compliance depend on payment timing. |
Effect of a lien clause
A term may allocate the risk of unpaid fees or require deposits, but it cannot be applied inconsistently with mandatory adjudication requirements. Clear acceptance by both parties is required before relying on any contractual withholding term.
Reasonable deposits or staged invoices agreed at appointment are safer than withholding a completed decision at the deadline.
Late decisions are fact-sensitive
Do not assume every late communication is automatically void or always valid. Examine the governing provision, length and reason for delay, any agreed extension, parties' conduct and the current enforcement authorities.
Parties should not manipulate timing
A party should not delay payment strategically in the hope of preventing release. Equally, an adjudicator should not create deadline pressure by issuing a first fee demand only after completing the decision.
Fee disputes
Disagreement about the amount or allocation of fees does not permit alteration of the decision. Preserve objections, pay under protest where appropriate, and use the available contractual or court route for fee recovery or assessment.
Appointment terms
| Term | Required clarity |
|---|---|
| Hourly rates | State rates and taxable treatment. |
| Estimate or cap | Define status and variation process. |
| Deposits | Timing, holder and reconciliation. |
| Several liability | State the parties' responsibility for fees. |
| Lien | State any term, subject to mandatory law. |
| Delivery method | Define valid communication. |
| Correction | Record the permitted slip process. |
Deadline sequence
Calculate the statutory and contractual deadline at appointment.
Record every agreed extension in writing.
Agree deposits, invoicing and fee allocation early.
Complete the decision within the valid period.
Communicate it promptly by the required method.
Issue the fee account without making delivery conditional beyond the deadline.
Use the correction power only for qualifying slips.
Address any fee dispute separately from compliance.
Authorities
| Authority | Citation | What it decides |
|---|---|---|
| St Andrews Bay Development Ltd v HBG Management Ltd and Janey Milligan | [2003] ScotCS 103 | No unilateral fee lien was recognised; the short delay did not invalidate the decision on the recorded facts. |
| Cubitt Building and Interiors Ltd v Fleetglade Ltd | [2006] EWHC 3413 (TCC) | An agreed lien could not displace the Scheme requirement for prompt delivery. |
| Mott MacDonald Ltd v London & Regional Properties Ltd | [2007] EWHC 1055 (TCC) | There was a conflict between delaying release to secure fees and the duty to communicate promptly. |