How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Jo C. Your Own Question

Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 30929
Experience:  Over 5 years in practice
12826847
Type Your Law Question Here...
Jo C. is online now

The RICS (Royal Institute of Chartered Surveyors) appointed

Customer Question

The RICS (Royal Institute of Chartered Surveyors) appointed an adjudicator from names put forward by the claimants in a dispute. I entered into the adjudication process believing the adjudicator to be wholly impartial and would NEVER have agreed to such an appointment if I had been informed beforehand. My client, who counter sued me, is a doctor and well connected, and my opinion was already that his friends formed his team of advisors. It did not make sense when I lost the case 100% and my enquiries to the RICS confirmed verbally that the appointment had been made from names put forward by the other side. I asked them to put that matter in writing but after a number of calls and recorded delivery letters they seem unprepared to reply. This case has cost me the loss of over £30k debts which I had been chasing from my client and the counter claim is for over £42k. A total of over £70k. Personally I have been unable to pay the claim or negotiate any form of settlement which has led to a statutory demand. I am however now in a position to pay but it has been an extremely unpleasant and costly process and I am understandably upset that I entered into this farce with a professional body who I believe gave preferential treatment to its members. Regardless of the outcome I would not have risked any negotiations with someone who I suspected may have known, or been connected to, my clients. I believe this to be unfair and inappropriate when the results of the adjudication carry the weight of the law. Is there anything I can do to sue the RICS for the damages I have sustained due to entering these negoitiations without the full facts? And I know everyone I have spoken to since who is a member of the RICS says they are entitled to do this but is it the case in British law?
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi

Thank you for your question. My name is AJ and I will help you today.

Is the main issue that you believe the RCIS was not impartial and independent?

Do you have any other experts that can attest to the fact that the case should have been decided in your favour?

Do you have any rights of appeal?

Kind regards

AJ
Customer: replied 3 years ago.

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?


 

Expert:  Nicola-mod replied 3 years ago.
Hello,

AJ has asked me to tell you that he is currently having problems accessing this question. We are working to fix the issue as soon as possible and AJ will reply to this as soon as he can.

I apologise for the problem, and thank you for your patience.

Nicola
Customer: replied 3 years ago.

Thank you for your message Nicola. Can you explain why are you located in the United States?

Expert:  Nicola-mod replied 3 years ago.
Hello,

I'm not in the United States at all, although JA's system shows me as being there. I'm in the UK.

Thank you,
Nicola
Customer: replied 3 years ago.

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.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your patience. My apologies but I had a problem with the system.

I am uk based solicitor, I may not always be able to answer you in real time but you will always hear back from before the day is out.

This is a quasi judicial function and therefore potentially if you have no right of appeal you can:
1. Seek a judicial review on the basis that the decision making process is flawed;
2. You can apply to court to settle the claim.

Are you contractually bound to accept the ruling of the adjudication?

Can you tell me anything about the dispute and your defence?

Thank you very much.

Kind regards

AJ
Customer: replied 3 years ago.

Sorry AJ


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.


Thanks.

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

I am sorry to hear that. No problem, I will be here when you are ready.

Kind regards

AJ
Customer: replied 3 years ago.

Thanks AJ


I'm working on it now.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you very much.

I look forward to hearing from you.

Kind regards

AJ
Customer: replied 3 years ago.

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.


 


Regards


Bob

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your email.

My apologies but i have been abroad over the weekend. I will review this today and respond to you tonight.

Thank you

Kind regards

AJ
Customer: replied 3 years ago.

Hi AJ


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.


 


Regards.

Expert:  Alex J. replied 3 years ago.
Hi

Thank you very much. Fortunately it was pleasure an old friend's wedding.

I am typing a response now I will post it by the morning at the latest.

Kind regards

AJ
Customer: replied 3 years ago.
Thanks AJ
Look forward to hearing from you. We had an old friends wedding too over the weekend. A nice break from the stress.
Regards
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I have read this carefully. In theory it is clear that the work was signed off and the damage caused was not either your fault or the client's fault. Your invoices should have been paid and if they were not there was a claim for breach. There is however a requirement that construction contracts are made in writing so the verbal alteration may cause you some difficulties.

The problem we have is that this matter has been taken through the contractual dispute resolution mechanism. You may well be contractually obliged to follow this mechanism, which in effect rules out the possibility of court action and would only leave you with seeking a Judicial Review.

Have considered this at length and read the RICS adjudication information on its website, I will need yet further information. Can you send me the page that deals with the dispute resolution procedure from the JCT contract? What I need to know to what extent you are bound by the decision?

At the moment how long do you have to pay the sum awarded against you?

Kind regards

AJ
Customer: replied 3 years ago.
Thanks AJ
I will forward the page from the JCT contract in the morning for you.

Thank goodness I have managed now to borrow the money. The client has been extrememly aggressive in their attitude to get the money and I was served bankruptcy papers last week. It is only a matter of days before payment is due. I had offered £25,000 to settle which was rejected and have sent them a cheque for £32,500 which I hope they will accept.

What you are suggesting does make sense to me but obviously the adjudicator took a different view which is why I don't think his view was not balanced or fair.
How legally acceptable is it that the RICS appoint an adjudicator from names put forward by one party without informing the other. To me it seems 100% unacceptable but how is it viewed from a legal perspective?

Many thanks
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

That is very positive news. What I would suggest you do is make sure that you send the money but reserve all right to appeal.

The problem is you are contractually bound to accept the dispute resolution mechanism, the RICS would have only followed what was in your mechanism, if there is no mention of how the adjudicator was selected then you may have an argument to say the whole adjudication was flawed and can therefore challange it by review. If you can send me the page from the JCT that would be a great help.

I am going to speak to someone from the RICS this weekend to find out more information on challenging their adjudications. I work with JCT contracts but as you can appreciate this is a slightly unusual situation.

Kind regards

AJ
Customer: replied 3 years ago.

AJ


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.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

No problem. I will assist in any way I can.

I am hopefully meeting an old colleague this weekend that I know has more experience than me with RICS tribunals so I am going to run the issue of impartiality by them if you do not mind?

Kind regards

AJ
Customer: replied 3 years ago.

AJ


 


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.


Regards


Leigh

Expert:  Alex J. replied 3 years ago.
No problem.

Kind regards

AJ

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Last | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice
 
 
 

Related Law Questions