ADJUDICATION, INCORPORATIONAND UNFAIR CONTRACT TERMS

Bryen & Langley Ltd v Boston [2004] EWHC 2450 (TCC); [2005] BLR 28

In Bryen & Langley Ltd v Boston [2004] EWHC 2450 (TCC); [2005] BLR 28 Judge Richard Seymour QC held that a term making provision for adjudication had not been incorporated into the contract between the parties with the result that the adjudicator had no jurisdiction to make the decision which he had made. Judge Seymour also considered the application of the Unfair Terms in Consumer Contracts Regulations 1999 (SI No. 2083) on the assumption that the adjudication clause had been validly incorporated into the contract. When deciding whether or not the adjudication clause is or is not unfair, it would appear that the identity of the party putting forward the adjudication term is vital. Where the term is put forward by the consumer, or by the consumer’s professional advisers, the term providing for adjudication is unlikely to be unfair. But matters are otherwise where the adjudication term is put forward by the contractor. In such a case the court is more likely to approach the adjudication term with suspicion and the contractor must be prepared to assume the burden of proving the fairness of the term, and in particular that the term has been brought to the attention of the consumer and that the consumer has understood its implications.