Payment of adjudicator’s fees did not amount to a waiver

In Platform Interior Solutions Ltd v ISG Construction Ltd [2020] EWHC 945 (TCC) Mr Roger ter Haar QC, sitting as a Deputy High Court Judge, held that the payment by the defendant of the adjudicator’s fees did not on the facts of the case amount to a waiver by the defendant of its entitlement to challenge the decision of the adjudicator. The payment of the fee had been accompanied by a communication from the defendant which made clear that it did not accept the validity of the decision of the adjudicator. However, it remains the case that payment of the adjudicator’s fee may be regarded by a court as evidence of an election to treat the decision of the adjudicator as valid. This being the case, a party who does pay the fee of the adjudicator, and who wishes nevertheless to challenge the validity of the decision of the adjudicator, should be careful to make clear that payment is not to be construed as an affirmation of the validity of the decision and that it reserves, in express terms, its right to challenge the validity and the enforceability of the decision.