There are a number of inherently competing principles in the adjudication process.
The timetable is short and judges have recently been telling us that adjudicators should keep control of the timetable and not to allow the process to go on forever. However, at the same time, the rules of natural justice apply. This includes giving each party the opportunity to know the case against it and allowing it to answer that case.
In addition, paragraph 17 of Part 1 of the Scheme for Construction Contracts 1998 requires an adjudicator to take into account any relevant information submitted to him. If the Scheme applies, this obligation is mandatory.
Ramsey J had to decide between these competing tensions in GPS Marine Contractors Ltd v Ringway Infrastructure Service Ltd.
In GPS, the responding party served a rejoinder, 2 days before the adjudicator’s decision was due and after the adjudicator had expressly said he did not give permission for service of the rejoinder. The adjudicator ignored the rejoinder when making his decision and went on to find for the referring party.
One of the grounds on which the responding party resisted enforcement of the adjudicator’s decision was that, in ignoring its rejoinder, the adjudicator had breached the rules of natural justice.
In finding that the adjudicator did not breach the rules of natural justice, Ramsey J decided that, given that adjudication was intended to be a rapid summary procedure which produced no more than a temporary binding decision, the adjudicator:
“was entitled to and needed to limit the rounds of submission”.
Parties to an adjudication have a knee jerk reaction to want to comment on anything and everything that the other side says or does. Everyone always wants to have the last word. For example, the referring party wanted the opportunity to respond to any rejoinder served. However, it seems that the TCC is telling us and adjudicators that the timescales simply do not allow this.
In any event, Ramsey J sought comfort from the fact that, having himself considered the rejoinder, there was nothing material in it. Even the responding party, when serving the document, had not, in its covering letter, highlighted why the rejoinder was absolutely necessary.
Just as Jackson LJ has been telling us recently that good case management is everything, so the TCC is increasingly passing on that message to all adjudicators and participants in the adjudication process. Enough is enough.
