Try Construction Ltd v Eton Town House Group Ltd

Adjudication must comply with procedural fairness, but fairness is assessed in the context of the statutory timetable, the provisional nature of the decision and the parties’ agreements about procedure. An adjudicator may investigate facts, use expertise and obtain technical assistance where the parties have authorised that course. A decision is not invalid merely because the adjudicator or an authorised assistant uses an analytical methodology not previously advanced by either party, provided the process remains within the issues referred and the parties have had a fair opportunity to address the material matters. Where the parties agree that an expert may independently analyse delay, the adjudicator may use that analysis while retaining responsibility for the decision.

The claimant contractor sought enforcement of an adjudicator’s decision awarding an extension of time, loss and expense, and repayment of liquidated damages. The defendant employer contended that the adjudicator had adopted an unargued methodology, delegated his decision-making to a programming expert, and thereby breached the requirements of natural justice.

The parties had agreed that the expert could use his own expertise, contact the parties’ programming experts and go beyond the strict confines of their submissions to establish the causes of delay. The central issue was whether the adjudicator’s use of the resulting delay analysis denied the defendant a fair opportunity to present its case.

1. Enforcement granted. The defendant’s challenge to the second adjudication decision failed. The parties’ agreement as to the role of Mr Lowsley was proved, and there had been no unfairness in the adjudication proceedings.
2. Procedural fairness in adjudication is not diluted, but its application must be assessed in the light of the statutory time constraints, the provisional nature of adjudication and any agreement made by the parties concerning the procedure. The approach described in Glencote Development; Design Co. Ltd v Ben Barrett Son (Contractors) Ltd. (2001) BLR 207 and Macob Civil Engineering Ltd. v Morrison Construction Ltd. (1999) BLR 93 was accepted.
3. The adjudicator was entitled to take the initiative in investigating the facts and law and to obtain technical assistance. The parties had expressly authorised Mr Lowsley to use his own expertise in analysing delay, and both parties participated in that process without demur.
4. The adjudicator did not decide matters outside the arguments developed by the parties. The material collated by Mr Lowsley came from the evidence and submissions, and the adjudicator made his own evaluative decisions, including reducing the period of delay identified by the analysis.
5. Balfour Beatty Construction Ltd v London Borough of Lambeth (2002) BLR 288 illustrated the proper approach but was materially different. In that case the adjudicator had devised an independent critical-path analysis without agreement or notice, had effectively remedied fundamental deficiencies in one party’s case, and had not allowed adequate time for the other party to respond. Those circumstances were absent here.