REUTERS | Stephen Hird

Evidence, rules of natural justice and the adjudicator’s discretion

It is a well-established principle in adjudication that the adjudicator must act fairly and comply with the rules of natural justice. We are all familiar with adjudicators not having separate communications with the parties; not taking advice from third parties; not advising the parties of a preliminary view (if formed) and so on. Equally well-established is the principle that adjudicators are bound by earlier adjudication decisions. But what happens when these two concepts collide?

This issue was before Akenhead J in C&E Jacques Partnership v Ensign Contractors at the end of last year. However, there was a twist. The parties had agreed that the fourth adjudicator’s decision was “null and void” and yet the contractor sought to rely extensively on that decision in its response in the fifth adjudication.

Unsurprisingly, the employer objected to this and invited the fifth adjudicator to:

“…confirm that [he would] take no cognisance of the [Contractor’s] submissions which referred to or relate to the 4th Adjudication Decision nor to the 4th Adjudication Decision itself.”

The fifth adjudicator responded to the employer’s invitation the following day, confirming that:

“…I will take no cognisance of the [contractor’s] submissions which referred to or relate to the 4th Adjudication Decision nor to the 4th Adjudication Decision itself…”

The contractor objected to the adjudicator’s decision, alleging that it was a breach of the principles of natural justice, and reserved its right to challenge the decision. The adjudication ran its course and, when the contractor failed to pay the sums awarded to the employer, the employer started enforcement proceedings. Once again the contractor raised the natural justice points.

Akenhead J reviewed the law on natural justice and put forward a useful set of principles to apply in a case such as this (paragraph 26 of the judgment, for those who are interested). He concluded that the fifth adjudicator had not breached the rules of natural justice since he had made a decision (the evidence was inadmissible) that was within his jurisdiction to make. He added that the fifth adjudicator’s decision to exclude the evidence was neither “irrational or perverse”; it was a respectable decision that many adjudicators (and even judges) may well have made in similar circumstances.

And what do I take from this?

Once again we have confirmation from the courts that an adjudicator’s jurisdiction to deal with the evidence put before him as he sees fit is a wide one. Provided an adjudicator makes a decision about the evidence that is within his jurisdiction, he will not breach the rules of natural justice. As Akenhead J said, adjudicators need to address the substantive issues of the defence but do not need to address “each and every aspect of the evidence” that has been produced to support that defence. We will not be in breach of the rules of natural justice if that is the case.

But should the adjudicator have done things differently?

Arguably not, since the court found that the adjudicator had not breached the rules of natural justice. However, in practice, the adjudicator may have handled things slightly differently. He could have:

  • Waited until he had heard from the contractor before ruling the fourth decision to be inadmissible (although this wasn’t a point the contractor argued, as Akenhead J noted in his judgment).
  • Declined to confirm the evidence was inadmissable. As the adjudicator said in his letter:

“An Adjudication Decision is the view of that Adjudicator based upon the evidence and submissions presented to him. I must make my Decision based on my view of the evidence and submissions presented to me.”

He didn’t need to go further than that, in my view. Instead, in his decision he could have simply attached little or no weight to the evidence.

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