Rok Building Ltd v Celtic Composting Systems Ltd (No. 2) [2010] EWHC 66 (TCC)

[2010] EWHC 66 (TCC)Case No HT-09-506
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 nd January 2010
Before
THE HONOURABLE MR JUSTICE AKENHEAD
Between
ROK BUILDING LIMITEDClaimantCELTIC COMPOSTING SYSTEMS LIMITEDDefendant
Patrick Clarke (instructed by Ashfords LLP) for ClaimantMichael Murray, company secretary in person for DefendantHearing Hearing date: 18 January 2010
JUDGMENT

Introduction

[1]This is another application to enforce an adjudicator’s decision, involving the same parties on the same contract as was the subject matter of earlier adjudication enforcement proceedings in this court; the judgement handed down on 31 October 2009 was reported as [2009] EWHC 2664 (TCC). In the earlier case, Celtic, the main contractor, argued that the adjudicator's decision did not require the defendant to pay but was simply declaratory, but judgement was given against it and the decision was enforced summarily.[2]In this case, Celtic argues that the Adjudicator (Mr Liam Holder who was the adjudicator first time round) has acted unfairly and contrary to the rules of natural justice in the second decision which he published on 1 December 2009. This case raises issues as to the extent to which one can infer unfairness on the part of an adjudicator where he or she may have gone seriously wrong and the circumstances in which an agreed slip rule may be used by an adjudicator with or without an appropriate level of fairness.[3]I will not reiterate the contractual terms or the facts as set out in the earlier judgement, which are germane to this case. Clauses 26 and 28 of the CIC Model Adjudication Procedure 4th Edition (which was applicable) state:
“26. The Adjudicator may open up, review and revise any certificate, decision, direction, instruction, notice, opinion, requirement or valuation made in relation to the Contract. 28. The Adjudicator may, within 5 days of delivery of the decision to the Parties, correct his decision so as to remove any error arising from an accidental error or omission or to clarify or remove any ambiguity.”
The Factual Background in this Case[4]There remained or arose further issues between the parties which related essentially to whether or not Rok had or should be treated as having completed its subcontract works on 8 June 2009; Celtic argued that completion had not been achieved at all. Although this was largely a factual issue, its impact was financial in that, if Rok was right, Celtic was required to release half of the retention moneys (calculated overall at 3% of the value of work done from time to time) and it would determine at least in the short term the extent to which it was arguable that Celtic was entitled to liquidated damages for delay. Since it was decided in the first adjudication that Rok was entitled to an extension of time at least until 6 March 2009, liquidated damages would be leviable only for a period between that date and 8 June 2009 or a later date depending if and when the completion date had been achieved.[5]It is worth setting out in tabular form what the state of the stage payments was by the time that this matter was proceeding in the second adjudication. Date 2009 Certif-icate No Gross certified £ 1)Retention 3% + 2)Liquidated damages Net Certified £ Balance due/owing £ 12/3 11 2,074,607.92 1) 62,238.24 2,012,369.68 95,954.54 April 12 2,245,928.44 1) 67,377.85 2,178,550.59 166,180.91 5/5 13 2,242,444.52 1) 67,273.34 2,175,171.18 [3,379.41] 18/6 14 2,317,104.70 1) 69,513.14 2,247,591.56 72,420.38 21/8 15 2,330,856.84 1) 69,925.71 2) 79,500 2,181,431.13 [66,160.43] 15/10 16 2,511,610.11 1) 75,348.30 2) 133,000 2,303,261.81 121,830.68 It seems to be the case that liquidated damages were also deducted from Certificate No 12 but, as this is certificate has not been exhibited, I cannot determine precisely how much, although the Adjudicator found that Celtic had withheld £45,500 for liquidated damages against it.[6]On 26 June 2009, Rok commenced the first adjudication relating to the extent to which flooding was an event which entitled it to extension of time and time related compensation. On 7 September 2009, Mr Holder issued his decision in that adjudication; he decided that the flooding was such an event, that extension was due until 6 March 2009 and that compensation in the sum of £204,465.14 plus VAT was to be paid by Celtic together with interest and his fees. It was this decision, not honoured by Celtic, which led to the first judgement against Celtic in the full amount of that decision, less an amount which had been paid by Celtic following the issue by Celtic, after those earlier proceedings were issued, of Certificate 16 which reflected in terms of the gross sum certified, the amount of compensation allowed by Mr Holder.[7]The dispute is un-controversially summarised in the second adjudication decision, with which this case is concerned, at Paragraph 9.2:
“(i) whether Completion of the works has been achieved and if so the date of Completion (ii) Whether the first moiety of retention of 1.5% has fallen due for payment and if so when and (iii) The amount of LAD’s Celtic are entitled to deduct from interim payment certificates 12 and 15 and subsequent payment certificates together with a decision as to the amount to be paid by Celtic in respect of LAD’s wrongfully deducted and payment certificates 12 and 15.”
The Second Adjudication[8]On 2 October 2009, Rok issued its Notice of Adjudication in respect of this further dispute. Mr Holder, who was a named adjudicator in the contract between the parties, was again appointed on 5 October 2009. On 9 October 2009, Rok served its Referral, contained in three files. Celtic served its Response on 21 October 2009 and Rok served its Reply (together with a response by way of Scott Schedule to the complaints about defects made by Celtic) on 5 November 2009, Celtic served a reply to that on 16 November 2009. Rok also served on 19 November 2009 a further unsolicited short submission to which Celtic replied on 20 November 2009. The parties agreed to give Mr Holder until 1 December 2009 to make his decision.[9]Rok served five witness statements from four witnesses (including Mr Bunting, its Contracts Manager of the project) all of whom worked for it. Celtic served 10 witness statements from eight different witnesses, four of whom worked for Celtic (including Mr Trickey, its Project Manager). Celtic’s witnesses included a Mr Rowett, a Chartered engineer engaged by a firm of engineers who managed engineering services for Celtic on the project, and a Mr Priddle, a former managing director of the ground works sub-sub-contractor engaged by Rok on this project. A substantial amount of contemporaneous documentation was provided by both parties, only a proportion of which has been provided to the court.[10]Although there was at one stage a discussion about a possible meeting between the Adjudicator and the parties, that did not materialise but no complaint was made about this by either party at the time.[11]The Adjudicator issued his decision on 1 December 2009. It runs to 31 pages. His decision was summarised in Paragraph 12.1:
“a. Completion of the Works was achieved on 8 June 2009 and a certificate of Completion is deemed to have been issued on the relevant date in accordance with clause 30.2 of the Contract; and that b. The first moiety of retention is due and the sum of £34,962.86 should be paid by Celtic to Rok forthwith, together with interest for late payment in the sum of £519.65 to the date of this decision; and that c. The amount of LADs (delay damages) that Celtic are entitled to the deduct from interim payment certificate 12, certificate 15 and subsequent payment certificates is £47,000.00; and that d. Celtic shall forthwith pay the sum of £32,500.00 to Rok in respect of LADs wrongfully deducted from payment certificates 12 and 15 together with interest for late payment in the sum of £483.05 (being £287.16 plus £195.89); and that e. Celtic shall pay interest on any sum awarded or paid late at the rate of 2% per annum above the average base rate…as calculated above to the date of my decision and which will continue to accrue at a daily rate of £4.62 until judgement or sooner payment; and that f. Celtic shall forthwith pay the Adjudicator’s costs and expenses.”
[12]Since there is a detailed challenge to the fairness by which this decision was reached and formulated, it is necessary to consider it in some detail:(a) At Paragraphs 1 to 6, the Adjudicator summarised the parties, the nature of the project, the contract, the adjudication provisions, details of his appointment and the confirmation that no challenges had been made to his jurisdiction. At Paragraph 7, he set out details of the exchanges between the parties and the various extensions of time which were granted or allowed. He confirmed at Paragraph 7.21 that he had reached his decision "having considered all the documents submitted to me during the course of this adjudication". He stated in Paragraph 8 that, whilst Rok had been represented by its solicitors, Celtic had represented itself.(b) At Paragraph 9 he set out the nature of the dispute (see above) and summarised the "Redress Sought" in the Notice of Adjudication.(c) It was in Paragraph 11, which runs to 21 pages, that he set out his "issues, analysis and the reasons". He confirmed that the submissions and accompanying documents extended to a total of seven lever arch files. He stated at Paragraph 11.5 that the issue of whether or not Rok achieved Completion pursuant to Clause 11.2(2) or whether Celtic "took over" the Works pursuant to Clause 35.2 and, if so, on what date, was fundamental. He later set out Clause 11.2(2).(d) As for the witness statements and contemporaneous documents, materially, he said:
“11.14 I have found the witness evidence helpful in varying degrees. It is voluminous and in some places more relevant than others. In this adjudication there has not been an opportunity for the witnesses to be cross-examined and that in my opinion places some limitation on the witness evidence. Much of the witness evidence provided takes the form of a relatively partisan rebuttal of the other party’s position. 11.15 However, each party has provided a substantial amount of contemporaneous evidence in support of the statements made and the positions adopted. 11.21 I am faced in the written submissions and evidence before me with completely opposing views as to the achievement of, or proximity to, the achievement of Completion, in particular through the witness evidence of Mr Bunting for Rok and Mr Trickey for Celtic. 11.22 As well as written witness evidence from Mr Bunting and Mr Trickey, I have also been presented with considerable contemporaneous evidence within their statements. It is the contemporaneous evidence which is, in my view, most telling.” (e) He analysed, largely but not entirely from the contemporaneous documents, what happened from 21 May 2009, when Mr Bunting e-mailed Mr Trickey that substantial completion was expected to be substantially complete on 5 June 2009, until August 2009. Mr Bunting’s e-mail attached a list of outstanding work activities headed "substantial completion list”
. Having referred to Mr Trickey's reply of 22 May 2009 (Paragraph 11.25), he said that he was surprised that Mr Trickey did not respond to the schedule "or, if there did remain significant outstanding work or defective work, to expand upon the schedule at the time” (Paragraph 11.26). He referred to an e-mail exchange on 3 June 2009 in which Mr Trickey said that he was "expecting to take control of the site from Monday! As per our discussion" (Paragraph 11.30); the next Monday was 8 June 2009. (f) At Paragraphs 11.31 to 11.39, the adjudicator refers to a meeting which took place on 5 June 2009 when the parties "walked the site" and considered the state of completion. At Paragraph 11.36, he expressed surprise "that as Project Manager [Mr Trickey] was not more overt in confirming what [various] concerns well and sharing them with Rok". He agreed "that the contemporaneous correspondence and documentation provided would seem to support" the contention that "against a backdrop of acceptance that completion was going to happen and that Celtic were going to take over the works" "no protestations were made [by Celtic] that the works were not complete and/or ready to take over"(Paragraph 11.39). He recorded at Paragraph 11.40 that as "a matter of fact…Rok left site on 8th June 2009". (g) He then reviewed what was said and done after 8 June 2009. He referred to a letter from Mr Trickey to Mr Bunting on 18 June in which he wrote that Celtic "verbally agreed that [Celtic] would take over the works (35.2), with uncorrected defects (45.1), Monday 8th June 09 on the understanding that you would ensure a number of items would be in place and that snagging would continue through the week ending 12th June 09. This has not happened…” He would not speculate as to whether Celtic’s stance had changed by reason of an intimation from Rok’s solicitors between 10 and 15 June 2009 about an intention to adjudicate but he did comment that the stance completely changed between 8 and 18 June 2009. (h) He pointed to some discrepancies between lists of alleged defects and incomplete items of work as relied upon by Mr Trickey in his adjudication statements compared with what he and Celtic were saying in July 2009. (i) He confirmed that he had reviewed all the witness statements submitted by Celtic, including those of Mr Rowett and Mr Priddle, and indeed commented on all or most of those statements. He referred between Paragraphs 11.75 and 11.79 to evidence that the cost of completing alleged unfinished works and rectifying alleged defects totalled £30,150.90; this was said to have been expended by a company, Blackdown Environmental, from whom a witness, Mr Shepherd, provided a statement. He stated that, in the context of Rok’s Sub-Contract being for £2.276 million, "this did not seem like a huge amount" (Paragraph 11.79). (j) Having reviewed the submissions, he found at Paragraph 11.87 in particular from the contemporaneous evidence provided “that Rok completed its work ready for Celtic to assume responsibility for the site on 8th June 2009” and at Paragraph 11.88: “There was at that stage still some remedial work for Rok to undertake but it is clear to me that the parties had effectively agreed that Completion would be achieved on 8 June 2009. Any defects remaining were to be completed on a visiting basis, as is quite usual in construction contracts." At Paragraphs 11.90 and 11.91, he found that the Works were complete in accordance with Clause 11.2(2) on 8 June 2009. (k) By reference to Certificate No 15, which was the last certificate issued before the initiation of the second adjudication, he decided that half the 3% retention deducted by that certificate should have been released to reflect the fact that completion had taken place on 8 June 2009 (Paragraphs 11.98 to 11.108). He therefore decided that half of the retention, £34,962.86, should be paid by Celtic to Rok to reflect this finding. (l) He then turned between Paragraphs 11.109 to 11.122 to liquidated damages, which he found had been agreed at £500 per day of culpable delay. He found that a maximum of £47,000 liquidated damages was payable for the 94 days of culpable delay between 6 March (the extended date for completion) and 8 June 2009 (the completion date as found by him). He also found that, by reason of Celtic’s deducting £45,500 against Certificate No 12 at a time when liquidated damages leviable were only £13,000, Rok should be entitled to interest on the balance which should have been but was not paid by Celtic. (k) At Paragraphs 11.123 to 11.129, the Adjudicator addressed the issue of interest and found that the appropriate rate of interest was 2.5%. He found that interest was due in respect of the wrongly withheld first moiety of retention, £34,962.86, from the final date of payment for Certificate No 12 (28 April 2009) until the date of his decision, namely £519.65. In respect of the delay damages wrongly deducted, £32,500, he allowed interest from 28 April 2009 to 4 September 2009 (the final date of payment of Certificate No 15) in the sum of £287.16. Since at least that sum had been withheld, he clearly believed, from 4 September 2009, he allowed interest from that date to the date of his decision in the sum of £195.89. (l) At Paragraphs 11.130 11.133, he ruled that Celtic should pay his fees in the total sum of £10,912.50 plus VAT.[13]Upon receipt of this Decision, Celtic on to December 2009 e-mailed the Adjudicator asking him to correct it. There were several clear "slip rule" amendments included in the list to the effect that the adjudicator had misnamed Celtic as Rok. Celtic invited the Adjudicator to open up the Payment Certificates. In particular, Celtic asserted that, if Certificate No 15 was revised to reflect the Adjudicator’s decision, it would read: Gross valuation 2,330,856.84 Less 1.5% retention 34,962.85 Delay damages 47,000.00 2,248,893.99 Less previously certified 2,247,591.56 Balance payable to Rok £1302.43 If this calculation was taken into account, Celtic argued that little or no net some would be due to Rok, let alone interest. Celtic referred to the fact that the original Certificate No 15 had produced a negative balance which had never in fact been paid by Rok. Apart from other minor matters, Celtic asked for clarification as to how Celtic should have to pay all the Adjudicator’s expenses and costs when, it is argued, Rok had misled the Adjudicator on the key issue of what had been paid or not paid. Celtic indicated that a final list of ambiguities and accidental errors and omissions would be served by the end of 4 December 2009[14]The Adjudicator's response on 3 December 2009 was by e-mail: “I agree that I am able, within five days from the delivery of my decision, to correct that decision to remove any error arising from an accidental error or omission or to clarify or remove any ambiguity. In all other respects I am functus officio and I am therefore not able to review the decision in substance and/or principle. I note the parties agree that the two clerical errors highlighted by the Referring Party should be amended. I do agree and apologise for the mistake on my part. I will correct the decision and re-issue it. In terms of the points raised by the Responding party, these go beyond the terms of clause 28 of the procedure and to the heart of my decision. Given that I am now functus officio I cannot review the substance of that decision. I note that Responding Party intends to furnish me with a fuller submission on 4th December 2009. I will not however be able to deal with this unless the points raised concern mere clerical errors or ambiguities of the type envisaged by the ‘slip rule’." Later that day, that Adjudicator sent the parties his Decision revised to amend the clerical errors.[15]On 4 December 2009, at 17.45, Celtic sent to the Adjudicator by e-mail a three page letter calling for "clarification and adjustment pursuant to the ‘Slip rule’”, referring to various precedents. The letter was sent, it states "in the pursuit of natural justice". The letter does not seem to have contained a "final list" as promised on 2 December but contains a number of further points raised by reference to specific paragraphs in the Decision. In summary the points made were:(a) Paragraph 11.16: the Adjudicator was asked to clarify why he had made no reference to incomplete work, such as the absence of isolation joints, highlighted by Celtic, in the Decision.(b) Paragraph 11.23: the Adjudicator requested to clarify how Clause 11.2(2) was satisfied when Rok’s “own schedule of deliverables” had not been achieved prior to 5 June 2009.(c) Paragraphs 11.72-11.74: because Rok are responsible for their own sub-contractors’ work, if it acknowledges that its subcontractor’s work is incomplete, it accepts that its own works are incomplete. The Adjudicator was asked why this was not relevant under Clause 11.2(2) and to clarify the procedural requirements of rectifying defects retrospectively in accordance with the contract.(d) Paragraph 11.126: it was suggested that he was incorrect in stating that the first moiety of retention was withheld from Payment Certificate No 12. He was asked to clarify this ambiguity.

(c) : it was suggested that this should read:

“the amount of LADs…that Celtic are entitled to deduct from interim payment certificate 12 is £13,000 and the amount of LADs…that Celtic are entitled to deduct from interim payment certificate 15 and subsequent payment certificates is £47,000…”
[16]The Adjudicator’s response by e-mail at 19.23 on the same day was succinct: “As I understand slip rule precedent and the express slip rule in this adjudication procedure, I am only able (within 5 days in this case) to clarify any simple mistake or ambiguity, for example an arithmetic mistake or a clerical or typographic error of the type I have already amended. I am not allowed to address matters that would go to the heart of my decision. I believe I have provided a fully reasoned decision. As I have previously stated, I am nowfunctus officio and I cannot therefore deal with the points raised by Celtic". These Proceedings[17]The Adjudicator’s Decision not having been honoured by Celtic, on 17 December 2009 Rok issued proceedings in the TCC to enforce it. Directions were given on 21 December 2009 to lead to the hearing before the Court. There are three witness statements from Mr Homer, of Rok’s solicitors, the first of which formally seeks summary judgement on the basis that the decision has not been honoured; it refers to the fact that Celtic had paid £1464.71 in respect of the interest part of the Decision on 10 December 2009, for which credit is given. It also refers to the fact that £133,000 was deducted from Certificate No 16 and indicates that Rok seeks summary judgement for the sum of £53,500 plus VAT said to have been wrongfully deducted, having taken into account the £47,000 liquidated damages said to be due and the £32,500 which the second Decision orders to be repaid. He exhibits most of the relevant payment certificates together with revised certificates which were issued by Celtic after the second adjudication Decision was published. His second statement referred to the fact that Celtic had changed its name to Celtic Bioenergy Ltd and, for no obvious good reason, attached two lever arch files of sub contract documentation (which was not referred to at all in argument). His third statement simply exhibited the exchanged "pleadings" in the adjudication.[18]Celtic served a document entitled "Defendants Witness Statement of Michael Luke Murray and Response to Claimants Particulars of Claim" in which Mr Murray, who is not legally qualified, set out Celtic’s challenge to the Decision. He makes clear that Celtic "does not challenge the jurisdiction of the Adjudicator". He argues that the Adjudicator did not operate the slip rule properly or so as to allow “natural justice and due process”. He complains that the Adjudicator did not open up and review properly or at all Certificates No 11 to 16 and wrongly assumed that the negative balance in Certificate No 15 had been paid back by Rok to Celtic. He argues that Rok had been overpaid by some £28,000. He asserts that Rok misrepresented to the Adjudicator what had or had not been paid and withheld against the various Certificates. He claims that the adjudicator did not allow Celtic natural justice because he made incorrect and significantly erroneous mathematical calculations and disregarded or attached insufficient weight to Celtic’s evidence, particularly of what he terms independent witnesses, in particular Mr Rowett and Mr Priddle. He complains that it was a breach of natural justice that the Adjudicator did not arrange a meeting whereby the evidence could be tested. He also complains that was a breach of natural justice for the Adjudicator to take into account (if he did) the Scott Schedule which was new information, he asserts, and which was not available prior to the adjudication.[19]Mr Murray also attached, amongst other things, the witness statements of Mr Rowett and Mr Priddle which had been served in the adjudication. The latter’s statement was very short. He attached as Appendix E "evidential proof of monetary transfers" from Celtic to Rok; this had not been put before the Adjudicator. This suggests that £2,455,202.74 has been paid to Rok although possibly several hundred pounds of this might well relate to interest payments made to Rok pursuant to the first adjudication decision.[20]Mr Murray served a second witness statement in which he complained that the Scott Schedule served with the Reply in the adjudication identified 29 items of incomplete or defective work. He said that no independent witnesses had been offered by Rock whilst Celtic had offered five independent witnesses and that the weight of evidence was in favour of Celtic and was overwhelming.[21]Both sides through Counsel and Mr Murray respectively submitted skeleton arguments and relied upon different authorities. Essentially, Mr Murray on behalf of Celtic argues that the Adjudicator failed to apply the rules of natural justice; this is put on the basis that the weight of evidence was so overwhelming that no adjudicator acting fairly could reach a decision which he did. It is said that as a matter of fact he simply got the maths wrong and must have ignored the clear evidence that Rok had in effect been paid almost all of that which was payable. This, he argues, was compounded by the Adjudicator’s failure or unwillingness to use the contractual "slip rule" to put right the manifest errors in what he had done in the first version of his Decision. It was wrong, he argues, and unfair that he permitted Rok to serve its Scott Schedule and that he failed to call a meeting during the adjudication in effect to test the evidence. He said that Rok misrepresented the payments position to the Adjudicator and that by reason of this, by one means or another, the Decision should not be enforced.[22]Mr Clarke for Rok challenged all that Mr Murray put forward. As there was no challenge to the jurisdiction, he argued that the Adjudicator acted wholly fairly and within the rules of natural justice and whether he got the answers right or wrong on the facts or the law was immaterial. He said that the fact that the Adjudicator may have answered wrongly or have misunderstood the factual position did not give rise to any inference that he had acted unfairly. The Law[23]In the field of adjudication enforcements, the Courts have, time and again, made it clear that, provided that the adjudicator is acting within jurisdiction, the fact that he or she has answered the relevant factual or legal questions incorrectly, even if the error is mathematical, the decision is still enforceable. A good example of this is the case of Bouygues (UK) Ltd v Dahl-Jensen(UK) Ltd [2000] BLR 522, where the adjudicator made a simple mathematical error such as, instead of there being no sum due to the claiming party, there was a balance due; that decision was enforceable. As Dyson J (as he then was) held at first instance ([2000] BLR 49) in that case, if an adjudicator makes a mistake in the way in which he decides an issue which was properly referred to him, that is not impeachable. He went on at Paragraph 35 to say:
“It is inherent in the [adjudication] scheme that injustices will occur, because from time to time, adjudicators will make mistakes. Sometimes those mistakes will be glaringly obvious and disastrous in their consequences for the losing parties. The victims of mistakes will usually be able to recoup their losses by subsequent arbitration or litigation, and possibly even by a subsequent adjudication…”
[24]The TCC and the appellate courts will be very slow to characterise even glaringly obvious errors made by adjudicators acting within their jurisdiction as breaches or evidence of breaches of the rules of natural justice to which all adjudicators are subject. It is not the function of the Court to conduct what is in effect a review of the relative correctness of an adjudicator's decision to determine the extent to which he or she "got it wrong". It has been said both by TCC judges and independent commentators that construction adjudications provide "rough justice" largely because the decision has to be produced usually within 28 days of the reference and, given what are often (as in this case) the exchange of very substantial and complex documentary evidence, adjudicators must do the best they can in the relatively short time allowed to them.[25]As for the law and practice relating to "slip rule" corrections to the decisions made by adjudicators, one needs in this case to look no further, initially at least, than the contract term agreed between the parties, Clause 28 of the Model Procedure; this is because the parties agreed that this was the provision to be operated. In Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd [2000] BLR 314, HHJ Toulmin CMG QC found that there was an implied term in effect in the adjudication agreement that the adjudicator might make a correction arising from an accidental error or omission. It is obviously the case that there can be no implication if there is an express term to similar effect. Discussion[26]It is perhaps material first to consider whether there have really been any mistakes, obvious or otherwise, made by the Adjudicator. What is clear from all the papers and indeed much of the argument promulgated by Mr Murray is that the payment and certification position was confused and unclear. Obviously both parties in the adjudication ran their factual cases on the merits upon the assumption that each would succeed. Thus, Celtic believed that it had a strong case on the facts and that it was clear that completion could not have been achieved on or by 8 June 2009; if it had succeeded on that, there would probably have been nothing due to Rok. Matters were complicated to some extent by the facts that the court proceedings in relation to the first adjudication decision were going on and that Certificate No 16 was issued during the course of the second adjudication to give effect to the finding in the first adjudication decision that compensation was due in respect of the flooding event.[27]There is no doubt that Celtic had the opportunity to present the payment position in a simple way. This it did not do during the course of the adjudication but it would have been simple to do so. It knew by the time that Certificate 16 was issued in October 2009 what on its case was the net entitlement. I suggested to the parties that a simple reality check could have been, by reference to Certificate No 16, as follows: Gross valuation 2,511,610.11 Less 1.5% retention 37,674.15 Delay damages 47,000.00 2,426,935.96 Less paid X Balance payable/due £2,426,935.96 -X However, nothing this simple was put before the Adjudicator. I am not in a position to make findings of fact as to what sums have actually been paid by Celtic to Rok. If it is the case as asserted by Mr Murray that some £2.455 million has been paid, the effect of the Adjudicator’s second decision is that an error has been made.[28]I decline however to decide whether there has been an error. If £2.455 million has been paid, that was certainly not made clear to the Adjudicator and, as a simple final reality check, it could have been put unequivocally to him. If it had been put in those simple terms, it might have been open to Rok to argue that the gross valuation of Certificate No 16 was an under-estimate. For instance, £204,465.14 was directed to be paid by Celtic pursuant to the first adjudication decision. Certificate No 16 only increased the gross sum certified in Certificate No 15 by some £180,000 which suggests that for one reason or another Celtic were adjusting the gross valuation (absent the first adjudication decision) downwards.[29]In any event, the mere fact that there was an error, and even if it was a glaring and serious error, should not affect the enforceability of the decision. I do not consider in this case that it is seriously arguable that this adjudicator, whose jurisdiction is not challenged, acted contrary to the rules of natural justice. My reasons are as follows:(a) He reviewed the evidence and arguments obviously with real care and attention. He, as many arbitrators and judges would do, applied significant weight to the contemporaneous documents and the inferences to be drawn about what the parties said and did or did not say and do at the time. Faced with witness evidence from each party which was diametrically opposed, no proper criticism can be made of him for doing so. In effect, his analysis showed, rightly or wrongly, that Rok was working towards completing in the first week of June 2009, that Celtic did not clearly or otherwise suggest that the works were not close, and getting closer, to completion by that time, that Rok left the site on 8 June 2009 with the knowledge of Celtic, that no protests were made in the week before that completion was about to happen and that therefore it is more likely than not that not only did Celtic agree that the works were complete but also that the works were complete for contractual purposes as well on 8 June 2009. Because it is not the court’s function, generally, to review the factual basis for adjudicators’ decisions, I can not say that his decision was obviously right on the facts but I can say that it was not obviously wrong and that it was not a decision on the facts which no adjudicator acting fairly and reasonably could not have reached.(b) It is an almost pointless exercise for Celtic to seek to argue that the weight of the evidence was such that no reasonable adjudicator could have reached a decision that the works were complete on 8 June 2009. The fact that Celtic produced some arguably "independent" factual evidence which supported its position is neither here nor there. I would comment only that, for instance, Mr Priddle's evidence was on its face of minimal relevance, as the Adjudicator himself found.(c) The fact that no meeting was held is not obvious evidence that the Adjudicator failed to comply with the rules of natural justice. He was not obliged under the agreed adjudication rules to have a meeting, although he had the power to do so. There appears to have been no objection taken when the idea of having a meeting was dropped. It is not obvious than in the time available serious and effective examination could have been effected on some 12 factual witnesses. In any event, much of the contemporaneous documentation would tell its own story by way of a cross check on the contents of the various statements.(d) The production by Rok with its Reply of a Scott Schedule did not give rise to any breach of the rules of natural justice. All that Rok was doing was setting out in a schedule for each of the principal defects or incomplete works relied upon and put forward by Celtic itself and putting its comments against each such item. It would if anything had been a breach of the rules of natural justice if the Adjudicator had refused to allow Rok to respond to these assertions by Celtic.(e) I do not see that Rok misrepresented anything material to the Adjudicator, and certainly not anything which was not capable of being rebutted in a simple and comprehensible form by Celtic. If Rok was misrepresenting the accounting position or balance between the parties, it was open to Celtic to rebut it by reference to what had been paid by it. There is no charge of fraud made by Mr Murray but even if there had been it would not affect the enforceability of this decision because the issue was capable of being fairly and squarely raised by him in the adjudication. It is difficult to suggest that the Adjudicator acted unfairly even if there was a misrepresentation if he failed to appreciate that such a misrepresentation had been made.[30]I now turn to the complaints made about the Adjudicator in relation to his alleged failure to apply the slip rule correctly or fairly. I do not consider that these complaints are justified for the following reasons:(a) The parties agreed by Clause 28 of the Adjudication Procedure that the Adjudicator had a discretion (“may”) to correct this decision either “to remove any error arising from an accidental error or omission" or “to clarify or remove any ambiguity”. He does not have a right to correct so as wholly to reconsider and re-draft substantive parts of his decision and in effect to change his mind on material points of principle. The first steps must involve the determination of whether there is either an "accidental" error or omission or an "ambiguity".(b) It must be the Adjudicator who is, and was here, best placed to determine whether there really is an "accidental" error or omission.(c) I do not consider that there was any "ambiguity" in his decision and, indeed, Mr Murray, to be fair, has not argued that there was any ambiguity which is material to this case. It is unnecessary therefore for me to consider the second part of Clause 28.(d) In so far as the Adjudicator was invited in effect to revisit his decision on the facts, the law or the merits, there was nothing obviously accidental in what the Adjudicator had decided.(e) Instead of pointing out in simple terms that the Adjudicator had, or may have, got the results wrong, mathematically or taking into account what had been paid overall by December 2009, Mr Murray chose to put before the Adjudicator on 2 December 2009 a complicated calculation which was related to a “Revised” Certificate No 15 which took no account of the fact that in the first adjudication decision an additional sum of £204,465.14 had been found to be due to Rok. I am not at all surprised that even an experienced adjudicator, such as Mr Holder, found that calculation less than comprehensible. Mr Murray has argued that a revised Certificate 16A issued after the Decision was issued made the position clear but the information in that revised Certificate was not put clearly to the Adjudicator at a time when he might have done something about it. For the reasons indicated in the earlier judgement, Celtic can not avoid payment pursuant to a valid adjudication decision by revising certificates after the decision is issued.(f) I consider that the Adjudicator was right, and certainly not arguably wrong, to reject the suggestion that he could, let alone should, correct his decision to reflect the contents of Celtic’s e-mails of 2 and 4 December 2009. It is simply not arguable to say that he acted unfairly or contrary to the rules of natural justice in refusing to correct as requested by Celtic.[31]It should be borne in mind that Celtic is not without remedies even though or if the Adjudicator has made an error of the magnitude suggested. It can institute arbitration proceedings to produce a final correction on the state of account between the parties.[32]Mr Murray also argued that the Adjudicator acted unfairly or wrongly in failing to provide full and detailed reasoning on a number of points. There are detailed reasons given by the Adjudicator and this argument is, with respect to Mr Murray a bad one. It is not necessary for adjudicators in their decisions to give reasons as to why they found some evidence compelling and other evidence not. He explained in broad terms that he found documentary evidence compelling and drew inferences, as he was entitled to do, and what was said or not said. It is clear from the Decision why he decided what he did.[33]I received from Mr Murray a written representation dated 19 January 2010 to the effect that summary judgement should be refused because the Claimant through its solicitor or otherwise and made various misrepresentation in effect to the Court. I am satisfied that there were no material misrepresentations to the Court by or on behalf of the Claimant. On the only claim on which leave to defend will be given, Counsel for the Claimant readily accepted that there was an arguable point on the facts.[34]Finally, Mr Clarke for Rok properly accepted that at best for his client there was a properly arguable defence in relation to his client’s claim relating to the alleged underpayment and over-deduction on Certificate 16. Decision[35]It follows from the above that Rok are entitled to summary judgement in respect of the sums said to be payable by the Adjudicator, namely £34,962.86 in respect of retention, £32,500 in relation to what he determined was wrongfully deducted liquidated damages together with interest. Credit needs to be given for the small sum paid or allowed by Celtic in December 2009. Interest should be payable from the date of the Adjudicator's decision until the date of judgement, that is, 22 January 2009 and the judgement rate on any unpaid sums thereafter. Payment should be made within 14 days of today; there is no reason to extend the usual time for payment. Permission to defend is given to Celtic in relation to the claim put in Paragraph 15 of the Particulars of Claim for £53,500 plus VAT.[36]For the avoidance of doubt, this judgement is given against Celtic, by whatever new name it is now known. Costs[37]I heard oral argument from both sides on costs. As Rok is the substantial winner, Celtic should pay its costs. This is an obvious case for a summary assessment. Rok’s solicitors a schedule of costs totalling £13,095.54. In my judgement, subject to two points, the level of charging is wholly reasonable. Clearly some time was spent by Rok and its legal team on dealing with the claim under Paragraph 15 although the bulk of the work must have related to the claim upon which it has been successful. Doing the best that I can, £1750 is a reasonable reduction for this factor. The next point is that clearly time and money were wasted on producing parts of Mr Homer’s second witness statement, in particular two lever arch files of immaterial documentation. All in all, allowing for the two points, I consider this is reasonable to assess Rok’s costs at £10,500 should be paid within two weeks.

Cited in 1 later judgment