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The timetable for the decision in Scheme adjudications is estab-lished by paragraph 19(1), which gives effect to the relevant parts of section 108(2) of the Act:

`19± The adjudicator shall reach his decision not later than ± (a) twenty eight days after the date of the referral notice

mentioned in paragraph 7(1);

(b) forty two days after the date of the referral notice if the referring party so consents; or

(c) such period exceeding twenty eight days after the referral notice as the parties to the dispute may, after the giving of that notice, agree.'

The 28 day period does not run from the date of the notice of adjudication, or the date when the adjudicator is appointed, but from the date that the referral notice is received by the adjudicator.

The referral notice should have been delivered within seven days from the notice of adjudication, but if it is delivered late, the start of the 28 day period is put back.

The timetable is one of the few aspects of the adjudication pro-ceedings that is not within the control of the adjudicator. He cannot in any circumstances give himself an extension of time. If the adjudicator needs more than 28 days to reach his decision, he must first ask the claimant for an extension. The claimant can grant an extension of 14 days, making 42 days in total.

If that is not sufficient, and the adjudicator needs more time again, all the parties to the adjudication must agree how much time is to be given to him. It is said both in the Scheme and in the Act that the agreement must be made after the delivery of the referral notice.

This prevents any attempt to prolong the adjudication proceedings by including an extension of time agreement in, for example, a main contractor's standard form of subcontract.

Section 116 of the Act excludes Christmas Day, Good Friday and bank holidays from the reckoning of periods of time under the Act, but there is no corresponding provision in the Scheme. Hence the periods set out in paragraph 19 cannot be read as excluding any calendar days at all.

The claimant will of course want the adjudicator to reach his decision as soon as possible. In practice though he is unlikely to be difficult about the adjudicator's request for the initial 14 day extension. He will normally be anxious not to upset the adjudicator for obvious reasons, and the adjudicator is likely to suggest that the extra time is needed so that he can give proper consideration to the points being made by the claimant.

Rather different considerations apply to the further extension, requiring agreement by both (or all if more than two) parties. Unless the dispute is of very great complexity, the most likely reason for the adjudicator requesting more than 42 days is that one party is in difficulty in producing information requested by the adjudicator.

The other party may wish to keep up the pressure by refusing consent to an extension that might assist the first party out of its difficulty. If the adjudicator believes that it is right that more time should be given he may well have to use all his powers of charm and persuasion.

As we have seen above, the adjudicator has complete discretion, subject to the requirement of impartiality, in dealing with the timetable for the adjudication within the overall time requirements of paragraph 19(1). If he does not produce his decision within the 28 days (or the agreed extended time), paragraph 19(2) applies:

`19±(2) Where the adjudicator fails, for any reason, to reach his decision in accordance with sub-paragraph (1) ±

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(a) any of the parties to the dispute may serve a fresh notice under paragraph 1 and shall request an adjudicator to act in accordance with paragraphs 2 to 7; and

(b) if requested by the new adjudicator and in so far as is reasonably practicable, the parties shall supply him with copies of all documents which they had made available to the previous adjudicator.'

If the adjudicator resigns, paragraph 9 of the Scheme applies and the referring party can start a new adjudication. If however the adjudication comes to a halt because the adjudicator is indisposed or for some reason refuses to produce a decision, but does not resign, paragraph 19(2) applies and either party can start afresh.

This gives scope for considerable confusion. It is all very well for a new adjudicator to be appointed when the original adjudi-cator has resigned, but if he has not resigned he may well con-sider that he is still supposed to be acting. He may still produce a decision, albeit late, and expect to be paid. It would be possible for the parties to revoke the first appointment under paragraph 11, but one party may prefer the original adjudicator to the new one.If the first adjudicator has not resigned and his appointment has not been revoked he remains in office as the adjudicator, notwith-standing that his decision has not been produced on time. The appointment of the new adjudicator does not automatically revoke the first appointment. If the first adjudicator then produces a decision it will still be a `decision', even though late. The approach of Sir John Dyson in Macob Civil Engineering Ltd v. Morrison Con-struction Ltd, discussed earlier in this chapter, suggests that pro-cedural irregularity does not prevent a decision from being a decision and therefore enforceable:

`If his decision on the issue referred to him is wrong, or because in reaching his decision he made a procedural error which invali-dates the decision, it is still a decision on the issue.'

As we shall see in Chapter 7, the adjudicator's decision is binding until the dispute is finally determined by legal proceedings, by arbitration or by agreement between the parties. The second adju-dicator, who no doubt will find out about the first adjudicator's decision during the course of the second adjudication, will have little choice but to conclude that the parties are bound by the first decision, even if he disagrees with it.

The practical consequences of being a few days late in producing a decision are therefore unlikely to be severe, unless both parties are sufficiently dissatisfied with the adjudicator's performance that they wish to revoke his appointment under paragraph 11. Failure to comply with the timetable provision of paragraph 19 would be a default on the part of the adjudicator and revocation in those cir-cumstances would mean that the parties would not be liable to pay the adjudicator's fees, as provided by paragraph 11(2).

The last provision of the Scheme dealing with the timetable is paragraph 19(3):

`(3) As soon as possible after he has reached a decision, the adjudicator shall deliver a copy of that decision to each of the parties to the contract.'

If he is able to arrive at his decision before the expiry of the time limit, the adjudicator cannot hold on to it until the 28 days is up. The main reason why the adjudicator may wish to delay delivery of the decision is to ensure that his fees are paid, as has long been the custom in arbitration. Typically an arbitrator will write to the par-ties saying that his award has been published and is available for collection on payment of the outstanding fees. He exercises a lien over the award. This is clearly not possible in adjudication under the Scheme.

Most of the other published sets of rules governing adjudication do not differ in substance from the Scheme on the point of timetable for reaching a decision, as of course the timetable was established by the Act. Clause 59(5) of GC/Wks/1 imposes a `not before' date as well as the normal time limit:

`The adjudicator shall notify his decision to the PM, the QS, the Employer and the Contractor not earlier than 10 and not later than 28 Days from receipt of the notice of referral . . .'

The CEDR rules also differ slightly from the norm in that clause 9 provides that:

`The Adjudicator shall reach a decision as soon as practicable, the objective being to have a decision within 14 days of the date of referral.'

Having set out this admirable objective, CEDR then imposes the same time requirements as the Scheme.

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Care is needed when dealing with the JCT contracts. The 1998 versions of the series set out the timetable requirements in accor-dance with the Act, but the amendments to the previous editions published as supplements prior to the publication of the 1998 edi-tions did not comply. They required delivery of the referral to the adjudicator within seven days of the notice of adjudication or the execution of the JCT Adjudicator's Agreement, whichever was the later.

There are more differences between the various sets of rules in dealing with what happens if the adjudicator fails to meet the deadline for producing his decision.

The JCT system does not say what will happen if the decision is not produced on time, but under the JCT Adjudication Agreement (considered in detail below), the parties can terminate the agree-ment (and therefore the appointagree-ment of the adjudicator) at any time. This would require agreement of the parties, which as sug-gested above may not always be easy to achieve. If the termination is because of a failure to give the decision within the time-scale the adjudicator does not recover his fees and expenses.

Under the ICE Adjudication Procedure, either party may refer the dispute to a replacement adjudicator if the first has failed to pro-duce a decision in time, providing it gives seven days' notice of intention to do so. Unlike the Scheme, the ICE Procedure deals with what happens if the first adjudicator carries on regardless. If he produces his decision late, but before the dispute has been referred to a new adjudicator, the decision is effective and he is paid. Once the dispute has been referred to a replacement, however, the deci-sion is of no effect. In those circumstances the first adjudicator is not entitled to be paid fees and expenses, save for the cost of inde-pendent technical or legal advice properly obtained.

GC/Wks/1 expressly states that the adjudicator's decision is valid even if late. Under the Adjudicator's Appointment for use with this contract, the adjudicator agrees to comply with the time limits set out in condition 59, but apart from the question of validity, nothing is said about what happens if he fails to do so.

No provision is made under the TeCSA Rules for failure by the adjudicator to produce his decision on time, but the chairman of TeCSA has power to replace any adjudicator nominated by him if and when it appears necessary to him to do so. Either or both parties can complain to him about failure of the adjudicator in several respects, including failure to proceed with the adjudication with necessary despatch.

The CIC Rules are similar to the ICE Procedure in that they state

that if the adjudicator fails to reach his decision within the time permitted, either party can request the appointment of a replace-ment adjudicator. If the original adjudicator produces his decision before referral to the replacement, it is effective. If he fails to make an effective decision, he is not entitled to be paid his fees and expenses except the cost of legal or technical advice which has been received by the parties.