Adjudication Decision: Approbation and reprobation or “blowing hot and cold”

In this update we look at the recent case of Dawnus Construction Holdings Limited v Marsh Life Limited EWHC 1066.

The Technology and Construction Court (“TCC”) held that by inviting the adjudicator to correct his decision under the slip rule and by failing to expressly reserve its right to challenge the validity of the decision, the responding party had treated the decision as valid and had therefore waived or elected to abandon its right to challenge enforcement of the decision.

The court referred to this election as “blowing hot and cold” or “approbation and reprobation”, i.e. where a party may have relied on the decision and paid part of the sum awarded, paid the adjudicator’s fees or had asked the adjudicator to modify his decision under the slip rule. Parties that have maintained an objection to jurisdiction during (and even after) an adjudication or parties that want to challenge the validity of an adjudicator’s decision must be careful not to inadvertently elect to treat the adjudicator’s decision as valid and must reserve their position otherwise they risk losing the right to challenge the decision.

Download our Construction Law Update.

For more information, please contact Suryen Nullatamby, Solicitor in our Construction Team.

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