Before the adjudication

Adjudicator should make sure they have robust terms and conditions. The prospects of fee recovery could be improved by including the following provisions:

• That the parties are jointly and severally liable for the Adjudicator’s fees.
• That the Adjudicator will charge their time on an hourly rate basis, and that such hourly rate also applies to time spent travelling and time spent pursing recovery of any overdue payments.
• A right to raise an interim invoice.
• A right to charge disbursements.
• That if the Adjudicator resigns, their fees and expenses are still payable.
• That interest applies for late payment.
• That the Adjudicator is still entitled to payment even if the Decision is later found to be unenforceable.

At the start of the adjudication

The Adjudicator should:

• Check with both parties what legal entity (e.g. which limited company) they are.
• Confirm to the parties what entity will be raising the Adjudicator’s fees (e.g. if the Adjudicator works at a company, that the invoice will be from that company rather than from the Adjudicator as an individual).
• Send their terms and conditions to the parties.

During the adjudication

The Adjudicator should:

• If the timetable for the adjudication is considerably extended, consider raising an interim invoice.
• Keep receipts for any disbursements.
• Record time spent with a summary of what was done.

In the adjudicator’s decision

The Decision should:

• Include a clear direction of which party is responsible for the Adjudicator’s fees.
• Remind the parties that despite the above direction, both parties are jointly and severally liable for the Adjudicator’s fees.
• Be accompanied by an invoice.
• Give a clear deadline for payment e.g. 7 days from the date of the Decision.

What if payment isn’t made?

1. Reminder email

If the deadline for payment passes and payment has not been made the Adjudicator could send an email to the parties and their representatives informing them that payment has not been made and reminding them that the parties are jointly and severally liable for payment.

2. Formal Demand Letter

If a positive response or payment is not received the Adjudicator could send a formal letter demanding payment.

3. Court Claim

If payment is still not received the Adjudicator could issue Court proceedings.

It is often helpful to issue the proceedings in a district registry of the Business and Property Courts Technology & Construction Court so that the claim can be dealt with swiftly by a specialist TCC Judge.

It should be expressly stated in the covering letter to the Court that the claim relates to Adjudicator’s fees and should be dealt with by a TCC Judge.

Fee recovery: How we can support Adjudicators

There are various steps that an Adjudicator can take to protect their position and improve the prospects of recovery of fees.

We can assist Adjudicators in:

• Drafting robust terms and conditions.
• Demand letters and further correspondence with the parties regarding unpaid fees.
• Drafting and issuing court proceedings.

If you have any queries in respect of this bulletin or would like to know more please contact Carly Thorpe.

[1] Linnett v Halliwells LLP [2009]; Fenice Investments Inc v Jerram Falkus [2011]; Science and Technology Facilities Council v MW High Tech Projects UK Ltd [2015].