John Sisk & Son Ltd v Duro Felguera UK Ltd

In deciding whether an adjudicator approached issues with a closed mind, the court must consider all relevant circumstances known when the challenge is determined, including the adjudicator’s subsequent conduct. A preliminary or non-binding view does not establish predetermination merely because the adjudicator later reaches the same conclusion. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of predetermination.

An adjudicator may obtain administrative assistance with assembling, organising and checking information, provided the decision-making function remains with the adjudicator. A contractual deficiency may be addressed as a matter of construction where that issue has been argued, even if the adjudicator describes the exercise as correcting the contract.

Sisk sought summary judgment to enforce an adjudicator’s decision awarding it more than £10 million under a construction contract. Duro resisted enforcement, alleging predetermination, unlawful delegation of the adjudicator’s decision-making function, and an unauthorised rectification or amendment of the contract concerning payment for structural concrete.

The adjudicator had issued a non-binding opinion on jurisdiction, later reconsidered the issues after meetings and further submissions, and used Mr Hutchinson to assist with note-taking, data organisation, calculations and proofreading. The central questions were whether the adjudicator had acted with a closed mind, delegated decision-making, or decided the concrete issue on an unnotified contractual basis.

1. Predetermination. The applicable question was whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of predetermination. The assessment had to be made when the issue came before the court, taking account of all relevant circumstances then known. The adjudicator’s earlier conclusions were expressly non-binding, and Duro had opportunities to make further submissions. His reaching the same conclusions later did not itself show a closed mind. His conduct demonstrated that he had reconsidered the issues afresh. This ground failed.
2. Delegation. Mr Hutchinson’s role was administrative. He assembled and reorganised material, took notes, checked arithmetic and proofread documents. Those activities did not involve deciding the valuation or other substantive issues. The evidence showed that the adjudicator made the material decisions. The delegation and natural justice challenge therefore failed.
3. Structural concrete. The contract was a remeasurement contract using the agreed rates, subject to agreement of appropriate rates where the work was not similar to work described in the unit price table. The adjudicator found that the measurement system distinguished between supplying and placing concrete and that no rate existed for supplying structural concrete. Although he referred to correcting the measurement table, he had accepted the construction advanced by Sisk and addressed by Duro. Duro had chosen to argue for either use of the existing rate or no additional payment. There was no breach of natural justice.
4. Approbation and reprobation. The court considered the authorities relied on for this argument but declined to determine the point without oral argument. The issue was unnecessary to the result and further submissions would not have been proportionate.
5. Duro’s challenge failed on every ground. Sisk was entitled to summary judgment, with interest to be agreed. Costs were to be dealt with by written submissions if not agreed.