Broughton Brickwork Ltd v F Parkinson Ltd

An adjudicator’s decision may be enforced despite mistakes of fact or law, including inadvertent procedural errors, unless the error amounts to a sufficiently serious and material breach of natural justice or makes the process obviously unfair. An adjudicator need not generally return to the parties for further submissions where an issue has been raised, the parties have had ample opportunity to address it, and the adjudicator considers the existing material sufficient. The circumstances causing an error, including whether a party materially contributed to it, are relevant. The expedited and interim nature of adjudication supports enforcement where any substantive injustice can be corrected in later proceedings.

The claimant sought summary judgment enforcing an adjudicator’s decision requiring the defendant to pay approximately £96,000. The defendant alleged a serious breach of natural justice because the adjudicator decided the validity of a subsequent pay less notice without inviting further submissions and failed to consider an email evidencing timely service. The adjudicator later accepted that, had he seen the email, the claimant’s claim would have failed. The central issue was whether these matters rendered the adjudicator’s decision unenforceable.

1. Summary judgment. The defendant had no real prospect of successfully defending enforcement. Judgment was entered for the claimant.
2. Issue before the adjudicator. The validity of pay less notice 14 was a positive issue raised by the defendant and was not admitted by the claimant. The adjudicator was entitled to decide it on the evidence and submissions already provided.
3. No duty to seek further submissions. The adjudicator was not required to return to the parties merely because he was uncertain whether more evidence or submissions might be available. Both parties had been given ample opportunity to address the issue, and the adjudicator was entitled to regard their more detailed treatment of other notices as indicating that they rested on their existing cases. The expedited timetable for adjudication also weighed against imposing a general obligation to ask whether anything further should be added.
4. Failure to consider the email. The omission was a procedural error, but it was inadvertent and was substantially caused or contributed to by the defendant’s failure to identify the email and its significance, together with the incorrect page references. The error did not amount to a serious breach of natural justice or render the process obviously unfair.
5. Applicable principles. Adjudicators may make errors of fact or law without losing jurisdiction. An inadvertent error can, in principle, constitute a serious breach of natural justice, although the reason for the error is materially relevant. Paragraph 17 of the Scheme for Construction Contracts imposed an obligation to consider relevant information, but breach of that obligation did not independently make the decision unenforceable; the question remained whether there was a sufficiently serious breach of natural justice.
6. The rough and ready nature of adjudication, its interim purpose, and the availability of later proceedings to correct substantive error supported enforcement. The defendant’s financial concerns did not justify a stay because no properly evidenced application under the approach in Wimbledon Construction v Vago had been made.

First instance decision. No prior appellate decision is stated in the judgment.