Thank you AJ
What do you think? The RICS allowed the other party to decide on the judge/adjudicator. Would you have been happy with that? If it was all above board and something they thought acceptable then why were we not told beforehand?
We had a failed attempt at adjudicating this matter previously and the RICS appointed an adjudicator in Birmingham, 2 hours from our home and 3 hours from the other side at least. How come when this one was appointed he was bearly 15 mins from the clients RICS accredited advisor?
We got in touch with the Society of Adjudicators to find someone to help us. He told us that putting forward someone to adjudicate would be considered biased and highly unlikely. However, when we told him it had happened to us he back tracked slightly (as an RICS member himself) and said it didn't necessarily smack of discrimination?? although he is now looking into the case for us to see if we made any fundamental errors which led the adjudicator to go 100% against us, especially since their were over 40 points of dispute and we only won 1 (which had an invoice to back it up).
The only right of appeal - we have been told - is to run the adjudication again. As you can imagine, we don't have much faith in that at the moment but we have got this guy going through the paperwork.
Our point is, the RICS/adjudicators decision is law abiding and we don't know if this behaviour is acceptable?
Thank you for your message Nicola. Can you explain why are you located in the United States?
Thank you Nicola. It's already stressful speaking to anyone in the legal profession without thinking they are also on the other side of the world.
I look forward to hearing from AJ / JA soon.
my day is not going well either. I've just done a long reply and accidentally deleted.
will try and rewrite and send again but it may be tomorrow now.
I'm working on it now.
I'm really sorry about the delay. It's not been easy and please accept my apologies - and for the length of what I'm sending through to you.
I believe I am contractually tied in but do you want to see any paperwork?
I signed a JCT contract and carried out works to build an extension and refurbish a house for a doctor and his wife I was recommended to them by their friend. The clients were difficult but the job went well and works were signed off satisfactorily by their first project administrator. I was asked to move a boiler during the course of the project to a new location. (This was not included in the original contract and there is no paperwork relating to the matter). After it was disconnect the boiler was going to be sitting around for a while. I was also concerned that it wouldn’t be powerful enough to run the heating for the new extended house so verbally informed the clients that I couldn’t guarantee it would work again satisfactorily once reconnected. The clients have since denied this conversation ever happened.
Unfortunately the clients would not pay for a new boiler because they thought the other one should be ok and my 40years dealing with heating systems accounted for nothing. With hindsight I wish I’d paid for a new boiler myself but instead spent considerable time trying unsuccessfully to get it going. With the client still refusing to replace the boiler and me unable to get it going I agreed to bring in “expert advice”. When an expert company also failed to resolve the problem a second company of experts were brought in. Both companies’ recommendations involved damage to the newly completed works. Neither the client, nor the expert companies involved me in their decisions. In the end the boiler was found to be defective and it was replaced. None of my work was found to be at fault but the bill for all the damage/rectification was charged to me and the client refused to pay the remaining £30,000+ and refused to engage in any form of mediation.
Eighteen months after the project was complete the clients brought in another advisor who went through all the costings which had previously been agreed and claimed I was over charging. All the works which had previously been signed off he now claimed was faulty/poor workmanship . Without any evidence they also said that my work had caused damage to the boiler but it didn’t make sense. However they set about producing a case of why they shouldn’t pay. When the client wouldn’t mediate, the only avenue left to me under the JCT contract was adjudication. With my "lack of funds" (having had to pay my suppliers the £30k shortfall) I, along with a retired businessman friend, tried to put a case together ourselves through the RICS but because we did not follow the correct protocol it was returned/rejected. The RICS did however appoint an adjudicator for the case who was based in Birmingham which is 2 hours from my home and Dr & Mrs Peskin’s. When the mediation attempt failed my client then offered £5,000 to settle. They didn’t attempt to increase the offer but turned the table on me and put together a case against me. Through a family contact I engaged with a company to advice on "the merits of my case" and their opinion was that I might at worse get about half of my money back. With the help of this firm, on an informal basis only as they were aware of my financial situation, my response was put to the adjudicator. At the time I was concerned that the adjudicator appointed lived bearly 15 minutes away from Matthew Bastone, the quantity surveyor, brought in after the job was finished and who was advising Dr & Mrs Peskin and was probably known to the adjudicator as he himself is a DipArb FRICS FCIArb. The adjudicators decision came back 100% in favour of the other side. The adjudicators fees which were anticipated to be between £3k and £5k shared between both parties came in at £12,000 with me paying all. The claim against me is presently £42,242.93 and includes the cost of the new boiler and £3,000 of stress. Of over 40 points of dispute between the parties only one, which was backed by an invoice, was awarded to me. I couldn’t believe the result and to everyone who knows me it seemed a complete stitch up. I contacted the RICS to complain that I thought the other side knew the adjudicator. I was stunned when I got a phone call from the RICS to confirm that the adjudicator had indeed been appointed by names but forward by the RICS member who was advising my clients through their claim. The RICS person told me that is wasn’t a conflict of interest because the adjudicator didn’t know the doctor or me. I couldn’t quite take in what was being told to me since clearly he probably did know the doctors advisor.
I have written 4 recorded delivery letters to the RICS asking them to confirm this in writing. They have failed to do so but I did get a call over 4 weeks ago apologising for the delay and an email saying a letter was on its way. I’ve still not got a written reply but I now suspect they realise it was a mistake?? I like to think so.
My clients were difficult people and very determined to get their own way. The sort who don’t like anyone telling them anything different to what they want. Hence not wanting to know the boiler might not work again – just because they didn’t want to spend money on a new one. They also had 2 firms of heating experts and are now on their 3rd firm of solicitors since they had their adjudication decision. If I’d known their advisor had put names forward to adjudicate I would never have agreed to it. I don’t like casting aspersions but I wouldn’t have trusted that I would have had a fair hearing and would have pulled out. I find it ridiculous that it should have been allowed in the first place. I know I think it should have been illegal but how does it work in actual law?
The way I see it, the RICS have been compliant is allowing something unfair to happen which has caused a loss to me of nearly £30k debt on a job and now more than £42k on a counter claim. I live within my means and don’t borrow money so I can’t get hold of cash easily. These people could have lost me my home, my pension, everything. I’m not sitting back and taking this nonsense but I just don’t have a clue as to who might be able to help, what risks I take or whether the law is going to make matters worse.
If you want any more information I have plenty of it here. This is, as I’m sure you can imagine, also very upsetting. I have been in the building trade for over 40 years. I have worked for most of that time on recommendations and have never had anything like this happen to me before.
Thanks for even reading this and any advice would be very helpful.
I hope your trip was pleasure and not work?
Thank you for reviewing and if you need more time please don't worry. I would rather you took your time.
Look forward to hearing from you.
I do apologise for not getting back to you. We are being a bit bombarded with all this at the moment (along with some personal problems too) and its difficult to find time to deal with everything. I have now settled with the claimants at £40,500 and the cheque is going recorded delivery in the morning. Once that is out of the way I will spend time going through your queries and just want to thank you so much for your help. I hope it will help sort out this mess for me but I can see it will not be straightforward. I have still not had any response from the RICS and am inclined to think they are keeping their head down at the moment.. I am away working until next Monday so will be in touch again after that.
Many thanks again.
Absolutely no problem and thank you for asking your colleague. Our opinion is obviously based on no more than "common sense" thinking. The RICS's lack of response to 3 recorded delivery letters also gives us the impression that they think there is a problem but we may also be reading more into that too. It was an adjudication not a tribunal - if there is a difference.
Many thanks and look forward to hearing from you.