The slip rule

The case of Rok Building Limited v Celtic Composting Systems Limited (No.2) [2010] EWHC 66 (TCC) reaffirms the position that a Court will not review the correctness of an adjudicator's decision on enforcement.

Dispute: Rok (the sub-contractor) applied to enforce an adjudicator's decision which ordered that Celtic (the Contractor) pay Rok particular sums of money. On receipt of the adjudicator's decision, Celtic argued that the decision was incorrect as there were various clerical errors and an error in the adjudicator's calculations. Celtic argued that if the correct calculation had been used, little or no sums would be due to Rok. Whilst the adjudicator amended the clerical errors, he stated that under the slip rule he was only allowed to clarify any simple mistake or ambiguity. The other issues regarding the adjudicator's calculations went to the heart of his decision and he could not review the substance of the decision. Celtic failed to honour the adjudicator's decision and Rok commenced proceedings in the Technology and Construction Court to enforce the adjudicator's decision. Celtic argued that the adjudicator had failed to apply the slip rule properly so as to allow "natural justice and due process". They further argued that the weight of the evidence was so overwhelming that no adjudicator, acting fairly, could reach the decision that was reached by the adjudicator.

Decision: The Court held that 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. The Court referred to the decision in the case of Bouygues (UK) Limited v Dahl-Jensen (UK) Limited [2000] BLR 522, where the adjudicator's decision was enforceable despite a simple mathematical error.

The Court stated that the Technology and Construction Court 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 adjudicator's decision to determine the extent to which he or she "got it wrong". The fact that no meeting was held is not obvious evidence that the Adjudicator failed to comply with the rules of natural justice.

As for the law and practice relating to "slip rule" corrections to the decisions made by adjudicators, the Court held that one needs to look no further that the contract term agreed between the parties. In this case Clause 28 of the CIC Model Adjudication Procedure (4^th edition) stated that the "Adjudicator may, within 5 days of delivery of the decision to the Parties, correct his decision so as to remove any error from an accidental error or omission or to clarify or remove any ambiguity".

Mr Justice Akenhead stated that he did not consider in this case that it was seriously arguable that the adjudicator, whose jurisdiction was not challenged, acted contrary to the rules of natural justice. The adjudicator had reviewed the evidence and arguments obviously with real care and attention. In respect of the slip rules, the adjudicator had discretion to correct his decision either to remove any error arising from "accidental error or omission" or to "clarify or remove any ambiguity". The adjudicator does not have a right to correct his decision so as wholly reconsider and re-draft substantive parts of his decision and, in effect, to change his mind on material points of principle. Mr Justice Akenhead pointed out that Celtic were not without remedy as it could institute arbitration proceedings to seek a final correction.

Rok was therefore entitled to summary judgment in the sums said to be payable by the adjudicator.

Advice: This decision reaffirms the position that a Court will not review the correctness of an adjudicator's decision on enforcement and that, provided that the adjudicator had not breached the rules of natural justice and the adjudicator had jurisdiction to hear the dispute in question, the Court will enforce an adjudicator's decision even it is incorrect.

As stated by Mr Justice Akenhead in this case, adjudications can provide "rough justice" largely because the decision has to be produced usually within 28 days of the reference and, given what is very often the exchange of very substantial and complex documentary evidence, adjudicators must do the best they can in the relatively short time allowed to them.

Clarke Willmott has an experienced team of construction solicitors should you require advice in connection with any of the issues discussed in this article or adjudication in general.

For further information in relation to our specialist construction services please contact Robin Gupta on 0845 209 1302 or robin.gupta@clarkewillmott.com or Natalie Britton on 0845 209 1431 or natalie.britton@clarkewillmott.com.

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