Adjudicator’s fees — whether fees must be reasonable and how is reasonableness resolved See The Vinden Partnership Ltd v Orca LGS Solutions Ltd and another8 An adjudicator is not entitled to payment of his fees without consideration of their reasonableness, following the decision of HHJ Waksman in a similar case. An express obligation to pay charge without qualification by reference to their reasonableness was not sufficient to exclude the implied obligation that the fees should be reasonable in all the circumstances. The requirement could not be negated except by very clear words in the contract (appointing the adjudicator). Where reasonableness was an issue, and insofar as the adjudicator has provided details of the time spent, the evidential burden to make out a prima facie case of unreasonableness was on the party challenging the fees. The Court should adopt a robust approach to the question and allow the adjudicator a considerable margin of appreciation given the speed at which and the pressure under which the adjudicator was expected to work. The Court should be careful against considering only the bare bones of the decision rather than the process which led to the result with the generous benefit of hindsight.
His Honour agreed with the views expressed in Fenice9 that regard should be had to the test for summary judgment – whether there was a reasonable prospect of showing the fees were unreasonable. Even if summary judgment was not appropriate the court would be expected to adopt a time and cost-effective way to resolve the dispute. The Court was in a position to determine a reasonable fee from the adjudicator’s time records and the underlying documentation without the need for additional disclosure.
This was a multifaceted dispute, starting off with jurisdictional issues and then involving issues of law, fact and quantum, over a substantial sum. The total time spent of 114.5 hours was not obviously unreasonable taking into account the number and size of the submission, (from referral to surrejoinder) the need for a site visit and an eight hour hearing, in an adjudication lasting some 58 days. Individual objections to particular records of time spent were addressed and dismissed and the court concluded both that the time claimed to have been spent was reasonable and that if it had carried out its own assessment of the fees it would have assessed the fees as claimed at £32,842.50 plus VAT. Judgment was given for the fees claimed together with interest and costs.
This article was originally written and published on the internet by Slater Heelis on 07/06/18.
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