REUTERS | Damir Sagolj

An adjudicator’s use of evidence and natural justice

It seems parties are always trying to think up clever and interesting arguments to resist enforcement of an adjudicator’s decision. Often they rely on alleged breaches of the rules of natural justice, which is an amorphous term for all sorts of alleged wrong-doing. Adjudicators have to be careful, although, even when they are, it seems they still face these allegations with increasing frequency. A case in point is ROK v Celtic.

In ROK v Celtic, the contractor alleged that the adjudicator was in breach of the rules of natural justice because, amongst other things, he:

  • Did not call a meeting with the parties to cross-examine the witnesses.
  • Disregarded or attached insufficient weight to the contractor’s witness evidence.
  • Failed to operate the slip rule properly (see last week’s blog).

No meeting with the parties

Everyone familiar with the Construction Act 1996 and the Scheme will know that there is no obligation on the adjudicator to call a meeting. Whether he does so usually depends on the facts and circumstances of the case (that old chestnut). Ordinarily, if there is conflicting factual evidence, it is good to hear the witnesses and to be able to gauge their credibility. In ROK v Celtic, it seems the parties adopted a partisan approach in their witness evidence and the adjudicator decided that, because he could test the evidence based on the contemporaneous documents, there was no need for a meeting.

I don’t think the adjudicator can be criticised for that. It really is personal to the adjudicator and the dispute. That said, if the parties want a hearing with the adjudicator, they should invite him to call one, explaining why they want a hearing.

Insufficient weight attached to the evidence

The parties, it seems, did nothing to help the adjudicator in his task. The adjudicator noted in his decision that:

“…Much of the witness evidence provided takes the form of a relatively partisan rebuttal of the other party’s position…

I am faced in the written submissions and evidence before me with completely opposing views…

It is the contemporaneous evidence which is, in my view, most telling.”

I don’t think the adjudicator can be criticised for these statements. Adjudicators (as well as arbitrators and judges) are taught to set out and comment on the evidence, especially when it is relevant.

Akenhead J summed this up as follows:

“[the adjudicator had] reviewed the evidence and arguments obviously with real care and attention. He, as many arbitrators and judges would do, applied significant weight to the contemporaneous documents and the inferences to be drawn about what the parties said and did or did not say and do at the time. Faced with witness evidence from each party which was diametrically opposed, no proper criticism can be made of him for doing so…

The fact that no meeting was held is not obvious evidence that the Adjudicator failed to comply with the rules of natural justice. He was not obliged… to have a meeting, although he had the power to do so… It is not obvious than in the time available serious and effective examination could have been effected on some 12 factual witnesses. In any event, much of the contemporaneous documentation would tell its own story by way of a cross check on the contents of the various statements.”

The only thing I would add to this: please prepare witness statements that will help the adjudicator. Time is short in adjudication. Partisan evidence assists no-one. Equally, nor does (to borrow from Jackson LJ) prolixity. Keep statements short and factual; don’t provide long rambling narratives of the evidence and the documents.

 

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