November 2009
Construction adjudication remains the most popular way of resolving construction disputes - but what if an adjudicator makes a mistake?
IF AN ADJUDICATOR MAKES A MISTAKE IN HIS AWARD, CAN IT BE PUT RIGHT?
In adjudication proceedings there is a rule known as the “slip rule” whereby it is implied into the contract that in certain circumstances, an adjudicator’s decision can be altered. This gives the adjudicator some flexibility to put right a mistake that becomes apparent after the issue of a decision.
The slip rule is designed to operate within a short period of time from the date that the adjudicator’s decision is given.
An example of a recent case where the slip rule has been considered is that of YCMS Ltd (T/A Young Construction Management Services) v (1) Stephen Grabiner (2) Miriam Grabiner (2009). In this case, it was stated that it would only be in exceptional and rare cases that a revision could be made more than a few days after the decision. This comes back to the main statutory purpose of adjudication which is to aid cash flow by allowing disputes to be resolved quickly; were the slip rule to extend to weeks after the decision, then it would slow down the process and interfere with the speedy enforcement of decisions.
WHAT KIND OF MISTAKES CAN BE PUT RIGHT?
In the YCMS case it was highlighted that the slip rule could not be used to enable an adjudicator who had second thoughts to correct his award. The slip rule is intended to correct mistakes that could be corrected relatively simply and speedily such as arithmetical mistakes or the transposition of incorrect names i.e. “patent errors”. It is unlikely that an adjudicator would be permitted to change his decision on, for example, a major point of fact or of law.
In this regard, the slip rule exists to correct the decision itself, not the basis for making a decision. Even if the adjudicator later has second thoughts and decides that the basis of the decision is wrong, it is unlikely that the decision could be altered under the slip rule.
