Adjudication - any advice ?

[Nick]

Hello,

I'm after some advice please...

The background is a small extension under contract with a local builder, using the srvices of an architect. The build started in May 2003, and was due to finsh July, but actually completed end August 2003.

So far I do not have building regulations approval - the staircase did not have sufficient headroom. I withheld payment of last amount, in part because of the work required to fix the stairs and also as several items in the last valuation were incorrect - e.g it included money I had withheld for 4 weeks damages due to late finishing.

We have now reached an agreement on the work to the stairs that the builder and building regs were happy with - and the works were due to start according to the builder once we had a final snagging list (this had not progressed from August as we were withholding payment, the builder refused to do the snagging).

Since that agreement, the builder then tried to complete just the stair work suggesting he could work on the Good Friday. We delcined as we were away for the weekend, and as the final snagging list had not been sent through. Our architect sent the final snagging list through and requested 7 days notice from them for when the work would start, and confirmation of the agreement that the snagging and stair work would be completed at the same time.

Since then the builder of my extension has invoked the adjudication clause in our contract (JCT).

I offered a final settlement of £4.5K. This was the £9.5K that the last valuation was for, less £2K for damages for late completion, and another £3K reduction was made up of approx £1,500 for not completing the snagging in any way (i.e he only had to fix the stairs) and about £900 in respect of anauthorised variations and an agreement with the buillder to not charge £640 for loft work that was excluded from the contract originally.

The builder has not accepted this - though he not ackowledged it either.

In the adjudication information they sent to RIBA, they state that the amount owing is £7,500 (including retention) - so it looks like they are accepting my claim for £2K damages for late completion.

I am not entirely clear on the builders reason for adjudication - he has yet to agree to complete the snagging list, and nor has he provided pricing for the variations that he carried out.

My architect says he cannot see why the builder would go to adjudication for £3K when the build has not yet gained building regulations approval - but, equally he has never had a contract go to Adjudication.

The appointed adjudicator has now been in touch and advised his fees are £100 / hr and his mileage rate is 55p / mile - and that he needs a site visit with my architect present. He is in West Yorkshhire - I am in North Yorkshire.

My questions are based around how the charges that the adjudicator incurs are proprtioned. I can see that the fees will quickly rack up and be more than the amount I have at dispute with the builder.

Now that the adjudicator has been nominated, should I not approach the builder - my architect is on holiday for a week. Also can we still reach a settlement or do I have to allow the adjudication process to run it's course now ?

Also - any thoughts on my case given the above brief one sided view of things ?

Many thanks. Nick

[Andy Hall]

I can't help you specifically on the adjudication, unless it is that he is playing a standoff game - basically creating a situation that will cost you money and hoping that you'll just fold and pay up.

One tactic that you can always do, since the amount is withing range, is to pay everything bar £4999 or some other amount just under £5k and let him sue you. That would take place in the Small Claims Division of the court and costs are low there.

I would decide on your minimum acceptable level of withholding and go from there. One thing to be aware of though, is that the courts do not tend to award much for inconvenience and late completion, unless there were specific penalty clauses.

.andy

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[Nick]

Andy ..#

Thanks for the advice - the sub £5K amount is a useful tip....I'll post back to you say how things progress

[Andy Hall]

You're welcome, Nick.

One thing that did stand out to me in what you wrote is that it does seem like gamesmanship on the part of the builder.

Do you think that somebody put him up to it?

Certainly based on the amounts involved, trying to avoid professional fees would be a good idea.

.andy

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[N. Thornton]

I get the initial impression youve not consulted a lawyer. If not, why not, you need to know where you stand in law, otherwise how can you make the right moves.

With the small claims court, legal costs are not awarded, so both parties know that he will be paying his legal costs in full. It is a simplified process designed to minimise your costs and time requirement.

One can consult a lawyer on a one time basis rather than taking them on to resolve the whole case, and this is a low cost option in many cases.

Regards, NT

[RichardS]

Not always the case - they can award costs, but rarely do.

I won costs against a landlord once who had bought the freehold to the building for some inflated amount and then attempted to recoup some of the "investment" by inventing sinking funds, management charges, etc. He took us to small claims, with the argument that our lease was plainly unfair (!) but then sent a letter that arrived the day before attempting to back out of the case, received after my father had arrived having travelled 200 miles to represent us... turned up at court regardless, explained the situation to the judge who then proceded to rule against the plaintiff & award us costs for loss of earnings & my father's fees...

That may well be a good idea - the OP ought to be aware of the extent of their obligations under the contract. The builder could in fact be playing a positioning game, expecting the OP to refuse adjuducation after a certain amount of fees had built up and then perhaps using that to strengthen the argument in court proceedings.

-- Richard Sampson

email me at richard at olifant d-ot co do-t uk