A few weeks ago I looked at the width of an adjudicator’s discretion to determine a dispute, as outlined by Coulson J in Wycombe v Demolition v Topevent. That judgment also raised a number of other issues, which I thought I’d share with you.
Wycombe Demolition Ltd v Topevent Ltd
As I said last time, Wycombe Demolition was employed by Topevent to carry out demolition works at a site at Lane End, Wycombe. The parties disagreed over the extent of the works that Wycombe had carried out before leaving site (which the adjudicator said was probably ended by mutual consent). Topevent also argued that a substantial portion of the building in phase 1B of the works was still standing and the ground floor slab and foundations of the phase 2B building still needed to be excavated and crushed.
Unsurprisingly, there was a dispute over how much was due to Wycombe for the works (including variations and extra works) and what was the value (if any) of Topevent’s counterclaim.
Refusal to attend site visit not breach
Topevent wanted the adjudicator to visit the site so that he could complete his assessment of any revaluation of Wycombe’s works. The adjudicator, Mr Gard, did not feel such a trip was necessary or would be cost effective. He noted that seeing the “simplicity of the site and outstanding work to be completed by others” might be relevant to the claim, but he was not persuaded that it would help him decide the “proper value of the works”.
In the enforcement proceedings, Topevent argued that this was a breach of the rules of natural justice (although they did not say this to the adjudicator at the time).
In Coulson J’s customary direct way, he described this objection as “hopeless”. His reasoning for this was that the adjudicator can decide the “procedure and process to be adopted” and any steps that are necessary prior to issuing his decision. This adjudicator did that, and decided a visit was not a proportionate use of his time. It was not for the court to then second-guess that decision.
Akenhead J’s decision in ROK Building Ltd v Celtic Composting Systems was referred to, where the court reasoned that:
“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 under the agreed adjudication rules to have a meeting, although he had the power to do so.”
In Wycombe v Topevent, a site visit was considered to be of no assistance to the principal issue between the parties (which was the value of the variations and the works carried out), which was a paper exercise that could be assisted by photographs, if necessary (and which were provided). There was no breach of the rules of natural justice and, even if there was, that breach was not a material one (Cantillon v Urvasco).
An adjudicator’s powers
An adjudicator’s powers are derived from section 108(2)(f) of the Construction Act 1996 (the right to take the initiative to ascertain the facts and the law), and paragraph 13 of the Scheme for Construction Contracts 1998, particularly paragraph 13(d) (which gives an adjudicator the right to make site visits and inspections).
I’ve looked at these powers before (and I’m sure I will look at them again!).
Should I hold a site meeting?
Just like Mr Gard, the main question I ask myself when deciding whether to make a site visit is whether I can decide the dispute without doing so in a more cost effective way. The same considerations apply when I’m deciding whether to hold a meeting with the parties, an issue both Jonathan and I have looked at previously. That meeting may be at site (to kill two birds with one stone).
If the submissions are disorganised and muddled then it may be easier to understand what the dispute is all about at a meeting/site visit. Similarly if the parties have provided extensive submissions and information, it may be useful to have a meeting in order to guide me through and point me towards what is relevant.
In terms of being on site, an understanding of the works in dispute is sometimes helpful, especially on time related disputes. Defects disputes also lend themselves to a site visit but only if the alleged defects are still unrectified and visible. If they are not (because they have been rectified, are historic or have been hidden) then a site visit may not make things any clearer to me.
What will be a breach?
This decision also made me think of HHJ Raeside QC’s judgment in Rydon v Affinity Sutton Housing, where the court held that a unilateral meeting with Rydon’s expert was not a breach of the rules of natural justice and the adjudicator had not exceeded his powers.
If not going to site isn’t a breach, and meeting one party’s expert alone isn’t a breach, it is hard to imagine an example of an adjudicator exercising his initiative that will be a material breach of the rules of natural justice (although, obviously, I can think of many other examples that are breaches!).