Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd 2

A term is to be implied into construction contracts that the adjudicator can correct accidental omissions or errors where such a correction would give effect to his first intentions. The Court cannot correct such error if the adjudicator refuses to do so.

HHJ Toulmin, CMG QC - Technology and Construction Court

5 April 2000

BC was a sub-contractor to BK under a contract dated 18 November 1998, which included an adjudication clause. The main contract was in the JCT. 80 standard form incorporating the April 1998 amendments containing an adjudication clause.

BC gave notice of its intention to refer a dispute to adjudication on 5 January 2000. The adjudicator was appointed and due to give his decision by 9 February 2000. He asked for a 14 day extension of time, but BC refused. In fact, the decision was given on 11 February 2000, although BC did not pursue this point in court. The decision awarded the sum of £122,098 to BC.

BK immediately realised that the adjudicator had not taken into account the payments made on account by BK. This error was pointed out to the adjudicator, who corrected his decision, describing the error as "an obvious slip", within 2 hours. The overall result was that no further payment was due to BC. BC applied to enforce the original decision, claiming that the adjudicator had no power to correct errors, except perhaps clerical errors. There is no equivalent to the slip rule in the Act.

The agreement between the parties was silent on this question. The Court examined the practice in arbitration and found that arbitrators could use the slip rule to correct errors. The Court found that in the absence of a specific agreement to the contrary, a term should be implied into the contract referring the dispute to adjudication so that the adjudicator may correct an error arising from accidental error or omission. He may do this on his own initiative, or if either party applies. This must be done within a reasonable time limit, but the time in this case was acceptable (no further guidance was given, although a further 28 days was not "necessarily appropriate"). The Court also noted that the other party must not be prejudiced by the correction.

An additional reason for implying such a term was the lack of ability of the Court to correct obvious errors, even where the errors cause manifest injustice.

Therefore, BC was not entitled to enforce the original, uncorrected, decision.

A term is to be implied into construction contracts that the adjudicator can correct accidental omissions or errors where such a correction would give effect to his first intentions. The Court cannot correct such error if the adjudicator refuses to do so.