They are not concerned with the question of whether the adjudicator got the decision wrong unless it is alleged that was the result of a breach of natural justice in the way the procedure was conducted. 2. 10.19 Facts: Thames Water had let over 300,000 packages of work to AMEC under a framework agreement. The additional material belatedly produced in the final stages of the adjudication was part of that advice. The observations of Chadwick LJ in Carillion Construction Ltd v Devonport Royal Dockyard Ltd (2005) (Key Case)13 apply equally to challenges based on natural justice as challenges based on excess jurisdiction: 1. The reception of the additional evidence and the failure to give Waterman the opportunity to deal with it amounted to a breach of natural justice, because the Adjudicator as to vital issues based his decision on matters that Waterman could not properly deal with. This is a term that is often used in Adjudications but what exactly does this mean? The Court of Appeal noted that the PKPU and bankruptcy decisions were not in the process of being appealed or set aside. Such determinations are not determinations as to jurisdiction but are a consideration of the merits of the defence. The result is that ambush on its own will not necessarily be enough to found a breach of the rules of natural justice, as confirmed in London & Amsterdam Properties Ltd v Waterman Partnership Ltd (2004) (Key Case):29. The adjudicator was of the view that he could fairly determine the adjudication within the agreed timetable—this was in many ways the most important factor. That is likely to be discernable from the adjudicator’s reaction to requests for more time during the adjudication. How can we help? Articles from the Silver Shemmings Ash Team on contractual matters, recent case law changes and items of interest in the construction and property world. So the judge refused to enforce the decision. Macob Civil Engineering Ltd v. Morrison Construction Ltd [1999] EWHC Technology 254 was the first case to come before the Technology and Construction Court (TCC) arguing that an adjudicator’s decision was in breach of natural justice – “The defendant has not complied with the adjudicator’s decision. It was a costly outcome for Bam. You are very welcome to this firm’s seminars and training sessions and to read the firm’s articles and publications. (d) If the allegation is, as here, that the adjudicator failed to have sufficient regard to the material provided by one party, the court will consider that by reference to the nature of the material; the timing of the provision of that material; and the opportunities available to the parties, both before and during the adjudication, to address the subject matter of that material. If he concludes that a notice was required, and that either there was no notice or that the notice that has been served was invalid for any reason, then he is entitled to disregard the cross-claim, and the court cannot interfere with that decision: Letchworth Roofing Co. v Sterling Building Co. (2009).47 If the adjudicator wrongly decides that a withholding notice was required and because there was no notice he rejects a defence of set-off, then he has made an error of law rather than a breach of natural justice.48. Accordingly, whilst the adjudication procedure might be considered by some to be inherently unfair, an adjudicator is bound by the time limits that parliament prescribed19 and there is no legal right to a public hearing or public pronouncement of an adjudicator’s decision. It may be an important part of the context in which the Adjudicator is required to operate and in which his conduct may fall to be judged in the light of the fundamental common law requirements statutorily underpinned in Section 108 (2)(e) of the Act. The objective behind the 1996 Act requires the courts to respect and to enforce an adjudicator’s decision unless it is plain that the manner in which it was reached was obviously unfair. It contends inter alia that the decision is invalid and unenforceable on the grounds that the adjudicator was guilty of procedural error in conducting the adjudication in breach of the rules of natural justice.”. On enforcement proceedings there is therefore often a plea by the responding party that it was not granted a fair time to deal with the referral with the result that there was a breach of natural justice. 10.14 In 2001, the TCC confirmed in Elanay Contracts Ltd v The Vestry (2001)16 that the Convention did not apply to adjudications, which were ‘not in any sense a final determination’, but could be reopened. AWG had only five days to respond before the adjudicator issued his decision in which he found in favour of Rockingham on the grounds set out in Rockingham’s late report. I stress that an unsuccessful party in a case of this sort must do more than merely assert a breach of the rules of natural justice to defeat the claim. As observed in Discain Project Services Ltd v Opecprime Development Ltd (2000) BLR 402,4 adjudication is inherently an imperfect but not necessarily final process5 which makes regard for the rules of natural justice ‘more rather than less important’, particularly where there is no appeal on fact or law from the adjudicator’s decision. Parties can, by their conduct, agree to waive or acquiesce in a breach of natural justice. 10.17 In London & Amsterdam Properties Ltd v Waterman Partnership Ltd (2003) (Key Case)21 there was a suggestion (obiter) that there may be some disputes, in particular final-account disputes, that may be too complex to be decided fairly in the time limits imposed by adjudication. Table 10.2 Table of Cases: Ambush and Insufficient Opportunity to Respond (successful challenges are indicated by shaded entries), 10.36 It is frequently the case in construction disputes that both parties consider they have valid claims; for example, a contractor’s claim for payment is often met with a counterclaim for defective work. 164. It is to provide a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement. If an adjudicator breaches the rules of natural justice during the adjudication then the decision may be a nullity if the breach is serious. The Adjudicator found that the settlement was reasonable on the basis of the very evidence about which Waterman complained and in the absence of the expert quantum evidence which Waterman did not have a fair opportunity to adduce …. 10.03 In addition, the common law principles of natural justice require that those affected by decision-makers are dealt with in a fair manner. Lack of impartiality or of fairness in adjudication must be considered in that light. The Courts are keen to enforce adjudication decisions save in the most exceptional circumstances and it seems that unless the circumstances are very particular, it may be difficult to succeed with an allegation of a breach of natural justice. London & Amsterdam Properties Ltd v Waterman Partnership Ltd [2004] BLR 179, [2003] EWHC 3059 (TCC). Insurance, Marine, Shipping & Aviation Services. Natural justice is binding upon both public and private entities. 10.35 Coulson J reserved costs until after the adjudicator had handed down his decision. It had not been made available to Waterman before service of a reply. In the circumstances, that decision was not permitted to stand as it was reached by breach of natural justice. However, there is a sensible school of thought which suggests that in those circumstances an adjudicator can in effect decline to accept the appointment on the grounds that justice cannot be done or the adjudicator can simply say to the claiming party words to the effect: ‘Unless you agree to an extension of time I will not be able to produce my decision within 28 days.’ Indeed, that is commonly what adjudicators will do and it is a very rare case when the claiming party does not accede to some extension of time accordingly. Copyright © 2013. A similar comment was made in AWG Construction Services Ltd v Rockingham Motor Speedway Ltd (2004).22 That argument has subsequently been raised by parties seeking to resist enforcement—but without success to date. 4. Where, as in this case the dispute is complex, involving the evaluation of the activities of a number of parties over a long period of time and issues of professional negligence and where the project is substantially complete the post mortem is best suited to arbitration or litigation. 10.31 Facts: Prior to referring the dispute to adjudication the referring party had refused, without any apparent reason, to provide further information and substantiation for its claim that late design information had led to critical delays to the steelwork package. The Court did not agree that the Adjudicator had done anything wrong and enforced the decision of the adjudicator.