Speak now or forever hold your peace: objecting to adjudication timetables

The recent TCC decision in KNN Coburn LLP v GD City Holdings Limited is a helpful reminder that objections to adjudication timetables should be made without delay. Particularly where the objection concerns the date for the reaching of an adjudicator’s decision, a failure to object may have the effect of waiving any potential enforcement challenge based on late delivery of the decision.

KNN emailed a soft copy of a referral notice to the Adjudicator on 31 January 2013 and explained that the hard copy with supporting documentation would follow by courier the next day (i.e. 1 February 2013). On 1 February 2013, the Adjudicator wrote to the parties setting out a timetable. He explained that he was taking 1 February 2013 as day zero and that day 28 (the date for a decision) would be 1 March 2013.

On receipt of the decision on 1 March 2013, GD wrote to the
Adjudicator and asserted that the decision was late and that the proper date of the referral notice was 31 January 2013 (not 1 February). The Adjudicator and KNN both agreed that the referral notice was received on 1 February 2013 when the hard copy documents were received and that the decision was issued in line with the agreed timetable.

The Court considered whether the Adjudicator was able to identify the issues in dispute from the referral notice without reference to the supporting documents and held that it could. On this basis, the correct date of receipt of the referral notice by the Adjudicator was 31 January 2013. It therefore followed that the Adjudicator’s decision was issued a day late.

However, KNN argued that if the Adjudicator’s decision was deemed to be a day late, GD had agreed to an extension by not raising any objection when the timetable was issued on 1 February 2013. This timetable stated that the date for issuing a decision would be 1 March 2013. In considering this issue, the judgment makes it clear that a prompt response is expected to any request for additional time and that if one is not given, silence could be deemed to be acquiescence but that this would turn on the facts and circumstances of each case.

Despite reserving their position with regards to a separate jurisdictional point, GD “engaged fully” in the adjudication process (including making a request for an additional day to serve their response) and did not challenge the timetable until after the Adjudicator’s decision.

The Court could not ignore this “attempt to spring a procedural trap without any prior warning”. By engaging in the process and not objecting to the timetable, GD’s silence was deemed to be acquiescence. It therefore followed that the decision of the Adjudicator was deemed to be on time and KNN was entitled to enforce the decision of the Adjudicator.

Reference: KNN Colburn LLP v GD City Holdings Ltd [2013] EWHC 2879 (TCC)