In this new series from Damian James, Damian shares some of his experiences and war stories from as a consultant and expert witness over the past twenty years or more. The series starts with a look at adjudication and the confusing decision of an adjudicator:
“Adjudication is a lottery and your argument is only as good as the Adjudicator you get.”
The first of this series involves a situation where Damian was engaged in an adjudication on behalf of a Subcontractor. Damian quantified the damage following an alleged repudiatory breach of the construction contract.
The grounds for the alleged repudiatory breach were on the following lines:
- The subcontractor received an email at 8.09pm on a Friday evening from main contractor stating,
- “We are terminating your subcontract and formal notice will follow tomorrow.”
- The following day, as it transpired, was Monday and with ‘belts and braces’, the notice arrived early morning.
- The notice provided 7 days for the Subcontractor to correct the alleged poor progress.
The main issue here was one of dates and process. From the cross-weekend issue of the notice and language used, it might be surmised that seven days from the issue of the notice would be seven working days. This would, of course, be different to seven calendar days. At best, this would make the deadline the following Wednesday (allowing seven working days). In the worst case, it might be the Monday (seven calendar days Monday-Monday).
However, the main contractor issued the termination seven calendar days after the Friday notice, not after the Monday notice.
Damian James provided damage calculations based on the alleged repudiatory breach. The Subcontractor provided counsel opinion arguing that the main contractor ought to be estopped (ie prevented in law) from executing the termination.
Despite all the above, the adjudicator decided that the Friday notice was a good notice and that termination was correct. For help with adjudication – not always a predictable process – get in touch today.