Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd

An adjudicator’s decision should generally be enforced despite an error of law or an arguable failure to consider evidence, provided that the adjudicator considered the dispute referred and the complaint does not amount to an obvious breach of natural justice. The adjudication scheme prioritises a prompt interim solution over a definitive determination of every factual or legal issue. A court should interfere only where it is plain that the adjudicator decided a different question or acted in an obviously unfair manner. A decision to disregard relevant evidence may be erroneous, but it does not ordinarily invalidate the award.

Kier sought summary judgment to enforce an adjudicator’s award of £719,295.40 for loss and expense under a construction contract. The adjudicator had declined to take account of two expert reports served by City & General in its response, treating them as new evidence which had not been available when the dispute crystallised.

City & General argued that this refusal rendered the adjudication invalid for breach of natural justice. The parties relied principally on Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA (Civ) 1358, and on earlier Technology and Construction Court decisions. The central issue was whether the adjudicator’s treatment of the reports could invalidate his decision.

1. Summary judgment granted. The adjudicator’s decision was enforceable and City & General was required to pay the amount awarded.
2. The court accepted that there was considerable force in the argument that the adjudicator ought to have considered the two expert reports. Nevertheless, the decision as a whole showed that he had considered each argument advanced in City & General’s written response. At most, he had made an error of law which caused him to disregard two pieces of relevant evidence.
3. Following Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA (Civ) 1358, an adjudicator’s erroneous analysis of the facts or law, and a consequent failure to consider evidence regarded by him as irrelevant, does not ordinarily constitute a breach of natural justice or invalidate the decision.
4. The court should respect and enforce an adjudicator’s decision unless it is plain that the question decided was not the question referred, or that the manner in which the adjudicator proceeded was obviously unfair. The present case was not one of the plainest cases warranting intervention.
5. Buxton Building Contractors Ltd v Governors of Durand Primary School [2004] 1 BLR 374 was of uncertain status after Carillion. Its passages asserting that failure to consider the opposing party’s evidence rendered an adjudicator’s decision unenforceable were regarded as incorrect. The court declined to follow that reasoning.
6. The court noted that Quietfield Ltd v Vascroft Contractors Ltd [2006] EWHC 174 (TCC) had proceeded on concession and had not considered the effect of Carillion. It therefore did not alter the conclusion in the present case.

The court ordered summary judgment under CPR Part 24 enforcing the adjudicator’s decision.