It is not uncommon for a losing party to be reluctant not only to pay his opponent but also the Adjudicator’s own fees.
The winning party has the option of going to court to obtain an order for summary judgment in order to force his opponent to pay. However, the Adjudicator does not have that luxury.
At present, an Adjudicator cannot hold back his decision until payment of his fees has been made. Other options tried previously by Adjudicators include making the referring party pay “up-front” or seeking a contribution for both parties at the start of the Adjudication. However, these are not mandatory and a refusal from either or both parties to this request may upset the Adjudicator, but once he has accepted the appointment, he has to continue and produce his decision.
The only option an Adjudicator has is to sue for his fees. Often, these fees are below £10,000 which means that the proceedings have to be issued in the Small Claims Court where legal costs are not recoverable. However, it may be possible once the claim is issued and served to make an application for summary judgment which should allow for some costs recovery.
Unfortunately some recent case law has meant that if an adjudicator gives a decision which is not enforceable by the courts then, the adjudicator cannot recover his own unpaid fees, or may even have to refund those fees.
As the Court of Appeal stated “The purpose of the appointment was to produce an enforceable decision which, for the time being, would resolve the dispute. A decision which was unenforceable was of no value to the parties”
If you are an Adjudicator who is still owed fees and wish to recover these then please contact one of our offices.