Out of sight, out of mind
Posted on 26/03/2015
In a recent TCC case*, the Court enforced an adjudicator’s decision even though the adjudicator had clearly overlooked a document which would have reversed his decision.
In short, the adjudicator decided that a pay less notice was served out of time, even though there was a document showing that it had in fact been served by email as well as post (thereby being served in time). He found in favour of Broughton Brickwork and ordered payment of a substantial sum. Although the document was amongst the responding party’s submissions, it was not expressly referred to and was incorrectly cross-referenced. Later, the adjudicator said that he assumed that the notices had only been served by post and were served late. He admitted in correspondence that, had he seen and considered the email notice, he would not have found in favour of Broughton Brickwork.
Although, this is an unusual situation, the judgment reinforces the Court’s reluctance to interfere with an adjudicator’s decision.
The Court pointed out that the immediate result might seem unfair to the contractor, however, it could be corrected in later proceedings. Whist that might well be the case, it seems unfair that the parties should be put to the expense of having to litigate simply because of the adjudicator’s oversight.
The practical effect of the decision is that an adjudicator should be guided through the submissions on behalf of parties to an adjudication and properly directed to all supporting documents to be relied upon. Leaving the adjudicator to trawl through documents on his own in the hope that he will discover and understand the significance of the supporting evidence is a risky strategy.
In reaching his conclusion, the judge restated the Court’s preference for enforcing adjudication decisions, even those which contain errors, noting that:
■“an adjudicator is entitled to make mistakes, whether in fact or law, even ones which are obvious and fundamental, without thereby rendering his decision unenforceable, so long as he acted within his jurisdiction”
■The Court will not enforce a decision if it has been reached in “serious and material breach of natural justice” but adjudication is a “rough and ready” process. Although the process is fallible, that in itself is insufficient to render the decision unenforceable.
The Court did not consider that the adjudicator had a duty or responsibility to look at and consider every piece of information presented to him. Rather, it is the duty of the parties to set out their case clearly through the written submissions and at any oral hearings.
Unfortunately, the submission documents did not clearly make the point that the crucial pay less notice had been validly served. Further, they did not specifically draw attention to, or make reference to, the email which evidenced a valid service.
Ultimately, the Court found that the cause of the adjudicator overlooking a crucial point and the associated evidence was due to the errors and weak presentation by the responding party. With that in mind, the Court did not even consider this to be an adjudicator’s mistake; rather it was an error caused entirely by the responding party’s poor submission.
In light of this recent decision, it is important to ensure that clear submissions are made setting out arguments in a way which is easily understood and easy to navigate. Presentation is also important, including accurate and easy indexing of the submissions and associated documents. Whilst these suggestions might seem obvious, given the tight timeframes to which the parties are working in the context of adjudication, even the basics can sometimes be overlooked.
The focus for both parties to an adjudication and their legal representatives should be on producing and presenting a considered case which is easy to understand.
For more information, email email@example.com.
*Broughton Brickwork Ltd v F Parkinson Ltd  EWHC 4525 (QB)