REUTERS | Darren Staples

It’s all about how you present your case before the adjudicator

In Broughton Brickwork Ltd v F Parkinson Ltd, HHJ Stephen Davies considered that an adjudicator’s failure to have regard to a particular document was not fatal and so enforced his decision.

While, at first blush, it may not seem critical to a party’s case if the adjudicator overlooks a document or two from the parties’ bundles, here the adjudicator said (after the event) that if he’d seen this particular document (an email serving a pay less notice) then Broughton’s (the sub-contractor) claim would have failed. Instead, he found that no pay less notice had been validly served by F Parkinson (the contractor) and so £96,000 odd was due to Broughton under its interim application.

But how did this situation even arise in the first place?

Broughton Brickwork Ltd v F Parkinson Ltd

A dispute arose between the parties over Broughton’s interim application 12, which Broughton referred to adjudication. Its referral only mentioned interim application 12 but F Parkinson’s response referred to two later applications, numbers 13 and 14, which it claimed superseded application 12 and which it claimed to have served pay less notices against. It included the notices in its adjudication bundle, but failed to refer to a letter that showed it had emailed the pay less notice for application 14 to Broughton in time. Ultimately, it was this failure to refer to the emailing of the letter that proved fatal to its defence in the adjudication.

In the subsequent enforcement proceedings, F Parkinson argued that there was a breach of the rules of natural justice. Something had gone so seriously wrong that there wasn’t rough justice, but no justice at all.

Broughton argued that overlooking the document was not a breach of the rules of natural justice. The adjudicator was entitled to reach the decision he did, and did not have to revert to the parties before doing so. Further, the fact that he failed to consider a particular document (the email) was “largely contributed to, if not wholly caused by [F Parkinson’s] own conduct”. Even if there was an error, it was merely procedural and did not invalidate the adjudicator’s decision.

The judge agreed with Broughton. It seems that it was F Parkinson’s own mistakes that contributed to the problem:

  • The response referred to the pay less notice against interim application 14 being issued, not served, and failed to mention that it had been emailed.
  • The adjudicator’s attention was not drawn to the existence or relevance of the email.
  • The cross referencing between the response and the adjudication bundle was wrong, with the relevant page number being one digit out (they referred to pages 184-204, instead of 183-204).

An adjudicator can make mistakes

We are all familiar with the principle that an adjudicator can make a mistake, whether of fact or law, and whether it is obvious or fundamental, and his decision will still be enforced. As the Court of Appeal in Bouygues v Dahl-Jensen said:

“Adjudicators will make mistakes. Sometimes those mistakes will be glaringly obvious and disastrous in their consequences for the losing party. The victims of mistake will usually be able to recoup their losses by subsequent arbitration or litigation.”

Here the adjudicator decided that the pay less notice for application 14 was not valid, which was a question he had been asked to decide. He made that decision based on the evidence and submissions before him and he did not have to go back to the parties and ask if they wanted to clarify their position or put forward further evidence. Interestingly, the court noted that both parties had “been afforded plentiful opportunity to say all that they wanted to say about the issue”. Thus, the adjudicator could not be criticised for taking the view that he had sufficient information to decide whether the pay less notices were valid.

It’s all about how you present your case

I think the judge summed up his views pretty succinctly and, I suspect, it isn’t the last that we’ll hear about this judgment.

If parties do not want to find themselves in the same position as F Parkinson did, they should think carefully about how they present their claim or defence. They should make sure that the materials supporting their submissions are clearly signposted and properly cross referred to. It is always good to get a bundle that contains only the important documents (not all the documents), clearly indexed and in chronological order.

Here, the court said that the adjudicator could not be criticised for:

“…not trawling through the totality of the documents before him or… for not looking at all of the pages which were said to be relevant to pay less notices 12 and 13, but not 14, in order to decide whether or not pay less notice 14 had been served on time.”

Also, if something is important, make sure you tell the adjudicator that it is important. Don’t leave it to chance. Here, the court said that, while the adjudicator had committed a procedural error, he did not do so deliberately. It was substantially F Parkinson’s own fault because it had:

“not drawn the existence or the importance of this document to the adjudicator’s attention…”

It really goes without saying that time is short in adjudication. That is all part of the “rough and ready nature of the adjudication process”. If you want the process to work in your favour, you have to do all that you can to help yourself and the adjudicator.

MCMS Ltd Matt Molloy

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