Broughton Brickwork Ltd v F Parkinson Ltd

An adjudicator’s decision will generally be enforced despite errors of fact, law or procedure, unless the error amounts to a serious breach of natural justice or makes the process obviously unfair. An inadvertent failure to consider a document may suffice in principle, but its seriousness depends on the circumstances, including the parties’ responsibility for the omission and the adjudicator’s expedited timetable. An adjudicator need not ordinarily return to the parties for further submissions where an issue was raised, not admitted, and the parties had adequate opportunity to present their evidence and arguments. The obligations in the Scheme for Construction Contracts reinforce, but do not independently expand, the basic requirements of natural justice.

Broughton Brickwork Ltd v F Parkinson Ltd concerned an application for summary judgment to enforce an adjudicator’s decision requiring the defendant building contractor to pay the claimant subcontractor approximately £96,000. The adjudicator had decided that later pay less notices were invalid because they had been served late.

The defendant alleged a serious breach of natural justice. It argued that the adjudicator had decided the validity of the notices without inviting further submissions and had failed to consider an email evidencing timely service of one notice. The central issues were whether the adjudicator was required to revert to the parties and whether the document omission made enforcement unjust.

1. Enforcement principles. An adjudicator may make mistakes of fact or law, even obvious and fundamental mistakes, without rendering the decision unenforceable, provided the adjudicator acted within jurisdiction. The court will not enforce a decision reached in a serious and material breach of natural justice or by a process that was obviously unfair.
2. No obligation to seek further submissions. The validity of pay less notice 14 was a live issue because the defendant had raised it positively and the claimant had not admitted it. Both parties had had ample opportunity to address the issue and provide material. The adjudicator was entitled to decide it on the material before him and was not required to ask whether either party wished to add anything further.
3. Failure to consider the email. The omission was a procedural error, but it was inadvertent and substantially caused or contributed to by the defendant’s failure to identify the email and its relevance, together with the misnumbered bundle references. The adjudicator was not required to trawl through all the documents to locate material which the defendant had not properly drawn to his attention.
4. Natural justice. An inadvertent error may in principle constitute a sufficiently serious breach of natural justice, although deliberate conduct is more likely to do so. Here the error made the decision wrong at most; it did not amount to a serious breach or render the adjudication obviously unfair. The resulting sense of injustice was part of the rough and ready nature of an interim adjudication, which could be corrected in later proceedings.
5. Scheme obligations and enforcement. Paragraph 17 of the Scheme for Construction Contracts required the adjudicator to consider relevant information and make available information taken into account. That obligation did not make every breach independently fatal to enforcement; it added nothing to the basic natural justice requirement. The defendant had no real prospect of successfully defending enforcement, and summary judgment was entered for the claimant.