RGB P&C Ltd v Victory House General Partner Ltd

An adjudicator may reach conclusions on programme logic, the critical path and an extension of time where those matters arise from the dispute referred and the parties’ cases, even if the precise analysis was not advanced by either party. Natural justice requires consideration of a substantive defence, but not every sub-issue or evidential detail. An inadvertent omission will rarely make an adjudication decision unenforceable. The court should assess the decision broadly and avoid a fine-tooth-comb approach.

RGB sought summary judgment to enforce an adjudicator’s decision in the fourth adjudication arising from the conversion of Victory House into a hotel. The adjudicator awarded RGB a further sum after determining the final account, extensions of time, liquidated damages and subcontractor loss-and-expense claims.

Victory House resisted enforcement on two natural justice grounds. It argued that the adjudicator had undertaken an undisclosed delay analysis and had failed to address its case that subcontractor claims were manufactured or unsupported. The issues were whether the adjudicator had exceeded the scope of the reference and whether any failure to address arguments or evidence was material.

1. Summary judgment granted. The adjudicator’s decision was enforced and judgment was given for RGB in the sums claimed.
2. Natural justice requires the adjudicator to address the dispute referred and material substantive issues. A breach must be more than peripheral and concern a decisive or considerably important issue. The principles in Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) were applied.
3. The adjudicator did not adopt an unrelated methodology by rejecting elements of RGB’s adjusted baseline programme, inserting a different logic link and rerunning the programme. The baseline, logic links, critical path and delay analysis were already in issue. The adjudicator’s questions and requests for native programmes made his investigation of those matters apparent. The case was materially different from Balfour Beatty Construction Company Ltd v The London Borough of Lambeth [2002] EWHC 597 and Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board [2012] EWHC 84 (TCC).
4. An adjudicator must consider a properly advanced substantive defence, but need not address every sub-issue or evidential detail. The approaches in Pilon Ltd v Breyer Group plc [2011] EWHC 2846 (TCC) and Jacques v Ensign Contractors Ltd [2009] EWHC 3383 (TCC) were applied.
5. The adjudicator had recited the criticisms of the subcontractor claims, considered their evidential deficiencies and assessed each claim. Any omission was not materially unfair. Judgment was therefore entered for RGB.

First-instance decision. No appellate history is stated in the judgment.