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Adjudicators must give both sides a fair hearing

08 October 2008

Less than 1% of adjudication decisions are not enforced by the Court. Recently the Court was asked to consider a new argument based on breach of natural justice, associated with the strict timetable required in adjudications.

JP Builders Limited v William Verry Limited was a rare judgment overturning an adjudication decision, in which a Court has found that the failure of an adjudicator to give extra time to a party to complete and make submissions (which the adjudicator disregarded) meant that there had been a breach of natural justice and that the winning party in the adjudication was not therefore entitled to summary judgment.

While adjudicators can rule evidence inadmissible because it is served late, the overriding objective must be to apply the principles of natural justice, and unless there are compelling reasons, they should let the parties make their case.

In another case heard by the Technology and Construction Court, VGC Construction Limited v Jackson Civil Engineering Limited, a losing party to an adjudication was trying to argue that a dispute had not crystallised. This is a tactic often used by responding parties. In this case, the paying party (Jackson Civil Engineering Limited) tried to argue that a loss and expense claim in excess of £300,000 had been put in a way that was so nebulous and undefined that it could not form the basis of a dispute, as they, Jackson, had not been able to respond properly to it. The judge rejected this, and found that a dispute had crystallised and therefore the adjudication decision was enforceable.

Parties should be very careful about not responding to claims, hoping that they can later argue that a dispute has not arisen. Except in obvious cases of ambush where the claiming party has not given the other party enough time to respond, it is likely that the Court will uphold a reference to adjudication.

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Simon Wain

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T: 08700 86 4122
I: +44 (0)121 625 4122
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