Civil Engineering Reference
In-Depth Information
intended to adopt, or sought observations from them as to the manner in which it or
any other methodology might reasonably and properly be used in the circumstances
toestablishortestBalfour'scase.headjudicatorshouldnothaveusedhispowersto
make good fundamental deficiencies in the material presented by one party without
first giving the other party a proper opportunity of dealing with that intention and the
results. Lambeth was entitled to have the dispute decided on the material provided by
Balfour Beatty, either originally or in answer to the adjudicator's requests, not on a
basis devised by the adjudicator. The judge said that if an adjudicator uses his pow-
ers to find out more about the facts or to form the opinion that a different principle
shouldbeapplied,heshouldtellthepartieswhathehasfound,andthepotentialimpli-
cations of those findings. Constructing, or reconstructing, a party's case for it without
confronting the other party is such a potentially serious breach of the requirements
of both impartiality and fairness that the decision was invalid, so the enforcement
application was dismissed. This case illustrates that while an adjudicator can take an
inquisitorial approach to ascertaining the facts, the adjudicator must act with care and
even-handedly. See also
ABB Ltd
v.
BAM Nuttall Limited
(2013).
While it may not be necessary for an adjudicator to obtain further comment from
the parties in a case where he applies his own knowledge and experience to assess the
factual and legal submissions advanced by the parties (see
Petition of Mr and Mrs Jack
Paton for Judicial Review
(2011)), it would, however, be appropriate to make known
to the parties and call for their comments in a case where the adjudicator uses his
own knowledge and experience to advance or apply propositions of fact or law not
canvassed by the parties.
In
Costain Ltd
v.
Strathclyde Builders Ltd
(2004), Costain raised enforcement pro-
ceedings against Strathclyde Builders, seeking payment of sums found due by an adju-
dicator,whichwerevariousamountsdeductedasliquidatedandascertaineddamages.
Summary decree was sought by Costain.
The adjudicator had sought and was granted an extension to the deadline for reach-
ing his decision as he wished to discuss one point in particular with his legal adviser.
Neither the terms nor the result of his discussions with the legal adviser were made
known to either party.
Strathclyde Builders argued that the advice given was material to which the adju-
dicator would probably have attributed significance in reaching his decision. Conse-
quently, his failure to disclose the substance of the advice, and invite comments, prior
to reaching his decision was a breach of the principles of natural justice.
he judge refused to grant summary judgment. He decided that it was not clear
whether the one particular matter which the adjudicator indicated he intended to
discuss with his legal adviser was adequately covered by the parties' submissions. It
was immaterial that no actual prejudice was demonstrated, the mere possibility of
prejudice was sufficient. The judge stated that if confidence in the system of adjudi-
cation was to be maintained it was important that adjudicators' decisions should be
free from any suspicion of unfairness. It was not an answer to say that an adjudica-
tor's decision could be re-opened at the end of the contract by arbitration or litigation.
Basic standards of fairness should be applied to adjudicators and vigorously enforced.
In
Highlands and Islands Airports Ltd
v
. Shetland Islands Council
(2012), the adjudi-
cator sought an informal view from Senior Counsel in a brief telephone conversation
