Civil Engineering Reference
In-Depth Information
on the interpretation to be given to a clause within the parties' contract. No formal
legal opinion or advice was sought and no fee was charged. he adjudicator chose not
to disclose this to the parties prior to his decision being issued. In fact the existence
of this informal advice only came to light by chance after the adjudication. During
the enforcement proceedings Lord Menzies held that, notwithstanding the accepted
facts that the adjudicator had already formed his own view on the issue prior to seek-
ing confirmation from Counsel and that this was an informal request for advice and
that no fee had been paid for it, this was legal advice and, given that the issue upon
which advice was sought was central to the matter before the adjudicator, his failure
to disclose the request and subsequent advice to the parties with a request for their
comments amounted to a breach of natural justice.
It is quite common for adjudicators to seek legal or other specialist advice. The
position is now clear. If matters are raised, parties must be given the opportunity to
comment. Even if new matters are not raised, parties should still be informed of the
content of the discussions. Failing which, a breach of natural justice may be held to be
established and the courts will not enforce the adjudicator's decision.
The adjudicator's decision in
Jacques (t/a C&E Jacques Partnership)
v
.EnsignCon-
tractors Ltd
(2009) to ignore a previous null and void decision was held not to be a
breachofnaturaljustice.Itwasheldthatdoingsocouldnotbesaidtobeirrationalor
perverseandtheadjudicatorhadnotfailedinanymaterialsensetoapplytherulesof
natural justice. His decision was enforced.
Considering a previous adjudicator's decision has been held not to amount to a
breach of natural justice, see
Arcadi's UK Limited
v.
May and Baker Limited t/a Sanofi
(2013).
In the Scottish case of
Atholl Developments (Slackbuie) Ltd Re Application for Judi-
cial Review
(2010), the Court of Session has given helpful guidance on the practical
application to adjudication of the principles of natural justice. Lord Glennie summa-
rized the main principles to be applied:
(i) Decisions of adjudicators are to be enforced unless there is good reason to
refuse enforcement. It is no defence to enforcement, and no ground for reduc-
tion,tosaythattheadjudicatorhaderredinfactorinlawor,unlessitresulted
in manifest unfairness, in procedure.
(ii) Where there has been a breach of natural justice, the court will interfere, but
it will only do so in the plainest of cases.
(iii) The nature of the process means that the court will not be overly critical of
the reasoning put forward by the adjudicator for his decision. It must be intel-
ligible,anditmustshowthathehadconsideredtheissuesbeforehimand
reached his decision on those issues for reasons which are explained in his
decision (see also
Whyte & MacKay
v
. Blyth and Blyth Consulting Engineer-
ing Limited
(2013)). But the reasons need not be explained in great detail, nor
need he refer to each document or each submission put before him (see also
PIHL UK Limited
v
.RambollUKLimited
(2012)).
(iv) There is a presumption of regularity or of propriety (see
RBG Limited
v.
SGL
Carbon Fibers Limited
(2010) above). In other words, it will be assumed,
unless the contrary is shown, that the adjudicator has looked at all the relevant
