Civil Engineering Reference
In-Depth Information
The phrase is now usually associated with the work of an adjudicator, although the concept
appliesequallytoarbitratorswhoareobligedtoactfairlyandimpartiallyingivingeachside
a reasonable opportunity to put their case and to deal with that of the other side. Natural
justice is an obligation upon those with power to act with procedural fairness when taking
decisions which affect others. Most people have an instinctive feel for natural justice and
can readily see when it is being ignored. So far as adjudicators and arbitrators working in
the construction industry are concerned, natural justice includes:
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Acting impartially, without bias and in good faith.
Conducting proceedings fairly and giving both parties the opportunity to present their
cases and to sufficiently comment on the contentions and evidence presented by the
other side.
a decision in 28 days from the date of the referral unless the time is extended. Even where
an extension of the 28 days is agreed, an adjudicator will not have a great deal of time to
consider the submissions and, possibly, investigate the issues. Working to a tight timetable
is the norm. Therefore, the courts tend to interpret the duty of an adjudicator to comply with
the rules of natural justice flexibly. The courts will rarely interfere with an adjudicator's de-
cision. But they will not enforce a decision if an adjudicator has breached natural justice to
any significant degree.
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Telephone calls between one party and the adjudicator are easily construed as indicating
a bias on the part of the adjudicator and should be avoided. Most adjudicators make clear
when accepting the appointment that they will not accept telephone calls from either party
unless such calls are initiated by the adjudicator as conference calls. Where a party is inex-
perienced in the niceties of adjudication, they might telephone the adjudicator seeking ad-
vice about procedure or even arguing their case. An adjudicator receiving such a call must,
of course, decline to discuss the matter and terminate the call politely but firmly and follow
up with a letter to both parties confirming the call, the length and what was said. Sometimes
an adjudicator may believe that it is quicker and easier to telephone one party with a request
than to write to both. This might be the case where one party has neither e-mail nor fax fa-
cilities and writing would take too long. If it is necessary for such calls to take place, there
is no reason why they should cause substantial injustice. They will not usually constitute a
breach of natural justice, but they must be confirmed to both parties as noted above.
