Case No. HT-08-331

[2002] BLR 113 at paragraph 29, ROK can no longer seek to contend that the decision is not binding. 19.Mr Jonathan Lee, who appears on behalf of ROK, submits that ROK has made no election which would preclude it from being able to challenge the decision. He relies on the reservation of rights in the letter sent to Mr Brooker on 22 October 2008, as well as the general reservation made in paragraph 1.2 of the Response. He also submits that the payment of the Adjudicator's fees was made by mistake and that payment of those fees cannot be said to be taking a benefit from the decision. 20.I now consider those submissions. The law on election which, Mr Stansfield submits, prevents a party from “approbating and reprobating” or relying on and challenging the decision of an adjudicator is of some antiquity. In Codrington v. Codrington [1875] LR 7 HL 854 at 866, Lord Chelmsford expressed the doctrine in these terms:“He who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it.”21.In Banque des Marchands v. Kindersley [1951] 1 Ch 112, a party sought to strike out an action on the basis that a bank was nonexistent and yet at the same time it was seeking to prove in the liquidation of the bank. The Court of Appeal, in finding that there had been no election, referred to the phrase “approbating and reprobating” in Scottish law, or the English phrase, “Blowing hot and cold" and said this at 119 per Lord Evershed MR :“From the authorities cited to us, it seems to me to be clear that these phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile and, secondly, that he will not be regarded, at least in a case such as the present, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent. These requirements appear to me to be inherent. For example, in Smith v. Baker LR 8 CP 350 and Ex parte Roberston LR 20 Eq 733. See also the speech of Lord Atkin in Evans v. Bartlam [1937] AC 473 at 479: “I find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he is still in enjoyment of the benefit. I cannot bring myself to think that a judgment debtor who asks for and receives a stay of execution approbates the judgment so as to preclude him thereafter from seeking to set it aside, whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election.” and the speech of Lord Russell of Kilowen at 483: “The doctrine of approbation and reprobation requires for its foundation inconsistency of conduct as, where a man having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit.”’”22.In Lissenden v. CAV Bosch Limited [1940] AC 412 the House of Lords held that the doctrine did not prevent a party from receiving benefits under an award and seeking to appeal the award to obtain greater benefits. Lord Atkin said at 429:“In this country, I do not think it expresses any formal legal concept. I regard it as a descriptive phrase equivalent to, 'Blowing hot and cold'. I find great difficulty in placing such phrases in any legal category, though they may be applied correctly in defining what is meant by election, whether at common law or in equity. In cases where the doctrine does apply, the person concerned has the choice of two rights, either of which he is at liberty to adopt but not both. Where the doctrine does apply, if the person to whom the choice belongs irrecoverably and with knowledge adopts the one, he cannot afterwards assert the other. Election between the liability of principal and agent is perhaps the most usual instance in common law.”23.In the context of adjudication claims, the principle has, in particular, been relied on in two decisions. In