Natural Justice in Adjudication
In the case of RGB P&C Ltd v Victory House General Partner Ltd [2019] EWHC 1188 (TCC), Mrs Justice Jefford DBE, provided a useful summary of the rules of natural justice that apply to Adjudicators, as follows;
From the Pilon Ltd. v Breyer Group plc [2011] EWHC 2846 (TCC) case she noted that Coulson J. held that;
"22.1 The adjudicator must attempt to answer the question referred to him. The question may consist of a number of separate sub-issues. If the adjudicator has endeavored generally to address those issues in order to answer the question, then, whether right or wrong, his decision is enforceable …
22.2 If the adjudicator fails to address the question referred to him because he has taken an erroneously restrictive view of his jurisdiction (and has, for example, failed even to consider the defence to the claim or some fundamental element of it), then that may make his decision unenforceable, either on grounds of jurisdiction or natural justice ….
22.3 However, for that result to obtain, the adjudicator's failure must be deliberate. If there has simply been an inadvertent failure to consider one of a number of issues embraced by the single dispute that the adjudicator has to decide, then such failure will not ordinarily render the decision unenforceable …
22.4 It goes without saying that any such failure must also be material …. In other words the error must be shown to have had a potentially significant effect on the overall result of the adjudication …
22.5 A factor which may be relevant to the court's consideration of this topic in any given case is whether or not the claiming party has brought about the adjudicator's error by a misguided attempt to take a tactical advantage."
Also, from the Jacques v Ensign Contractors Ltd. [2009] EWHC 3383 (TCC) case she noted that Akenhead J had said;
“(a) The adjudicator must consider defences properly put forward by a defending party in an adjudication.
(b) However, it is within an adjudicator's jurisdiction to decide what evidence is admissible and, indeed, what evidence is helpful and unhelpful in the determination of the dispute or disputes referred to that adjudicator. If, within jurisdiction, the adjudicator decided that certain evidence is inadmissible, that will rarely (if ever) amount to a breach of natural justice. The position is analogous to a court case in which the Court decides that certain evidence is either inadmissible or of such little weight and value that it can effectively be ignored: it would be difficult for a challenge to such a decision on fairness grounds to be mounted.
(c) Even if the adjudicator's decision (within jurisdiction) to disregard evidence as inadmissible or of little or no weight was wrong in fact or in law, that decision is not in consequence impugnable as a breach of the rules of natural justice.
(d) One will need in most and possibly all "natural justice" cases to distinguish between a failure by an adjudicator in the decision to consider and address a substantive (factual or legal) defence and an actual or apparent failure or omission to address all aspects of the evidence which go to support that defence. It is necessary to bear in mind that adjudication involves, usually the exchange of evidence and argument over a short period of time and the production of a decision within a short time span thereafter. It is simply not practicable, usually, for every aspect of the evidence to be meticulously considered, weighed up and rejected or accepted in whole or in part. Primarily, the adjudicator, needs to address the substantive issue, whether factual or legal, but does not need (as a matter of fairness) to address each and every aspect of the evidence. The adjudicator should not be considered to be in breach of the rules of natural justice if the decision does not address each aspect of the evidence adduced by the parties."
The above summaries should therefore be referred to when considering how the rules of natural justice relate to Adjudicators.
Peter Barnes
Blue Sky ADR Ltd
2019
i This article is provided for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the writer or by Blue Sky ADR Ltd. If specific advice is required, Blue Sky ADR Ltd should be contacted direct at [email protected]
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