Liverpool City Council v Vital Infrastructure Asset Management (Viam) Ltd (In Administration)

An adjudicator must decide the dispute referred, but need not answer every argument or declaration separately. A reference may address matters arising under a framework agreement and an incorporated call-off contract where the contractual adjudication provisions contemplate that course, or where the issues form stages towards one ultimate dispute. A notice is effective if served at the contractual address and achieves its purpose; an immaterial addressing error does not deprive the adjudicator of jurisdiction. A decision may nevertheless be unenforceable for material procedural unfairness where the adjudicator determines a decisive point which was neither advanced nor fairly notified for submissions.

Liverpool City Council was respondent to an adjudication brought by Vital concerning payment for temporary fencing maintenance under a framework agreement and related NEC3 call-off contract. The adjudicator awarded Vital £128,500 and interest.

Vital entered administration before payment. Liverpool City Council brought Part 8 proceedings challenging the adjudicator’s jurisdiction, the validity of service, the alleged nullity of the decision and its enforceability for breach of natural justice.

1. The challenges based on the two-contracts issue, notice issue and nullity issue failed. The contractual adjudication provisions contemplated disputes involving both the framework agreement and call-off contract. The declarations sought were stages towards one ultimate payment dispute, and the framework terms were incorporated into the call-off contract: Witney Town Council v Beam Construction (Cheltenham) Ltd [2011] EWHC 2332 (TCC).
2. The notice was validly served at the Employer’s contractual address. Addressing it also to the Head of Procurement was an immaterial mistake because the notice was received and acted upon. The court accepted the principle in Vision Homes Ltd v Lanscville Construction Ltd [2009] EWHC 2042 (TCC), but applied the reasoning in University of Brighton v Dovehouse Interiors Ltd [2014] EWHC 940 (TCC).
3. The court does not reconsider whether an adjudicator reached the correct answer. An error within jurisdiction does not make a decision unenforceable. The adjudicator need not answer every point separately, provided that he decides the referred dispute and does not breach natural justice.
4. The adjudicator materially breached natural justice by finding that Liverpool City Council had implicitly accepted that a schedule-of-rates entry was a typographical error, although that case had not been advanced by Vital and had not been fairly notified for submissions. The adjudicator also failed to engage with Liverpool City Council’s substantive arguments. The principles in AMEC v Whitefriars [2004] EWCA Civ 1418 and Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) were applied.
5. The decision was declared unenforceable as procedurally unjust. No sum was due on its basis.

First-instance Part 8 proceedings following an adjudication. Permission had previously been granted for Liverpool City Council to bring the proceedings against the administrators.