Civil Engineering Reference
In-Depth Information
The power of an adjudicator to use his initiative in investigating the facts and the law
must be exercised in accordance with principles of natural justice and must be read in
conjunction with the adjudicator's duty to act impartially. Some adjudicators interpret
their duty to act impartiallyas a prohibitionon privatemeetings or conversationswith
one party only. It is certainly the safer course to adopt. If an adjudicator procures any
information from whichever source and certainly if it might have a bearing on his
decision, both parties shouldbe informedof this so that they are given an opportunity
to comment on it. Despite the pressure of time on adjudicators, with the result that it
maybealmostimpossibletogivepartiestheopportunitytobeheardoneverypossible
topic within the time available, it would be prudent for an adjudicator to record what
information has been obtained and to pass it on to the parties in sufficient time to
enable them to comment before he reaches his decision.
In
RBG Limited
v.
SGLCarbonFibersLimited
(2011) the adjudicator had on
one occasion written to the parties to advise them that he intended to use his own
knowledgeinrelationtoanaspectofthedisputeandrequestedanyresponses
within 24 hours, which was the morning of the day the decision was due to be
issued. Although the judge ultimately decided this case on a jurisdictional argument
(see Section 16.10.2), he did question what chance there would have been of the
adjudicator changing his mind in light of any comments received at this late stage.
In
Woods Hardwick Ltd
v.
Chiltern Air-Conditioning Ltd
(2001), Woods Hard-
wick were engaged to provide architectural services at a development. Disputes
arose between the parties and Woods Hardwick claimed for unpaid fees and addi-
tional work. They commenced adjudication proceedings. After two site meetings
the adjudicator consulted Woods Hardwick's representatives, two of Chiltern's
sub-contractors, the local authority's litigation department and RIBA's legal helpline.
He did not inform Chiltern either that he had obtained information from those
sources or of its content. Chiltern was not given an opportunity to comment upon
the information obtained. The adjudicator issued his decision dismissing Chiltern's
defence and awarding Woods Hardwick most of the sums claimed. Woods Hardwick
sought to enforce the decision and submitted a detailed witness statement from
the adjudicator which indicated that he had taken an adverse view of Chiltern's
performance and of the representatives who appeared at the meetings. The judge
dismissed the proceedings on the basis that the adjudicator acted in a manner which
could be easily perceived as partial in approaching one side without informing the
other, in seeking additional information from third parties and in then making
adverse findings against the party left in ignorance. This was compounded by the
adjudicator's voluntary provision of a particular type of witness statement. The
adjudicator's witness statement effectively confirmed in the judge's mind his lack of
impartiality.
The case of
Balfour Beatty Construction Ltd
v.
The Mayor and Burgess of the Lon-
don Borough of Lambeth
(2002) concerned a late completion dispute. he adjudicator
adopted a 'collapsed as-built' method of analysis which had not been advanced by the
parties but did not present his analysis to the parties for their comment. His Honour
Judge Lloyd held that the adjudicator should have invited comments on whether the
as-built programme he had drawn up was a suitable basis from which to derive a ret-
rospective critical path. He should have informed parties of the methodology that he
