It argued that the adjudicator's jurisdiction to oblige one side to pay the other's costs is unclear under the Construction Act and the scheme. It was also not certain whether the costs could be recovered as part of subsequent proceedings if they were paid over to Cothliff. So, Allenbuild paid costs into a trust account and invited Cothliff to consent to costs following subsequent proceedings. Cothliff did not consent but took that part of the decision to the Technology and Construction Court in Liverpool. Judge Marshall Evans QC heard the case on 29 July 1999.
Costs are subject to wide discretion and they naturally follow the event.
The judge meant that the winner of a major issue or event should be paid the costs expended in arguing that issue. The court decided that the crucial parts of the scheme were paragraphs 13 and 16. Here, the adjudicator is given the power to decide on which procedure be followed. Judge Marshall Evans QC had allowed representations by lawyers and a firm of dispute specialists. Paragraph 16 anticipated assistance by advisers whether legally qualified or not, in which case the intention was to give the adjudicator a great deal of discretion for the hearing, procedure and all ancillary matters.