REUTERS | Yves Herman

Should I take notice of late submissions?

We have recently had two TCC judgments where the court has appeared to be sympathetic to the difficulties that adjudicators face with late submissions in adjudication.

In both cases, the responding party alleged that the adjudicator had breached the rules of natural justice by either ignoring or not taking sufficient notice of its submissions. In both cases, the court rejected the allegation. 

In GPS Marine Contractors Ltd v Ringway Infrastructure Services Ltd, Ramsey J held that an adjudicator could decline to consider the responding party’s rejoinder, served late in the day and after the adjudicator had advised the party that it did not have permission to serve it.

In Amec Group Ltd v Thames Water Utilities Ltd, Coulson J held that the adjudicator did not have to refer in his decision to the responding party’s submission (a rejoinder served just a few days before the decision was due), or to particular parts of its counter-claim.

I was particularly interested in Coulson J’s remarks about adjudication. For example:

“The adjudicator was not obliged to consider the further response in any detail. I do not go as far as to say that he could ignore it altogether… However, it seems to me that, in view of the fact that the [rejoinder] was provided just over two days before he had to complete his final decision, the adjudicator was not acting in breach of natural justice if he simply glanced at the material that it contained, to see its general nature and to see if it contained anything of real significance.” (Paragraph 64.)

“…an adjudicator is not obliged to consider in detail a second round submission or pleading, served very late in the adjudication process. His overriding obligation is to complete his decision within the time limit. If that means that he cannot read or digest in detail a document provided just over two days before that decision had to be finalised and provided to the parties, then that is simply one of the consequences of the adjudication process. In adjudication, a requirement to consider every round of the parties’ submissions in detail, which might be required of a judge or an arbitrator pursuant to the rules of natural justice, will always be tempered by the adjudicator’s overriding obligation to comply with the time limits.” (Paragraph 65.)

“…it is becoming very common for parties in adjudication to believe that they are in some way entitled to respond to every submission put in by the other party. In my view, unless the contract or the relevant adjudication rules expressly permit it, they do not have such an entitlement. Adjudication is not intended to resolve disputes by reference to innumerable rounds of submissions or pleadings.” (Paragraph 66.)

Ramsey J had made similar comments:

“I consider that… the Adjudicator was entitled to and needed to limit the number of rounds of submissions. As he observed, parties to adjudication feel the need to keep making further comment on what the other party has said but the timescale in adjudication does not permit this. The wish of Ringway to serve a rejoinder two days before the date for the Adjudicator’s decision was something which the process had not and could not allow… the Adjudicator had made it clear that permission was not given for a rejoinder but, despite that and without putting forward any new ground for doing so, Ringway simply served the document… the service of the Rejoinder on day 26 of the 28 period for the Adjudicator’s decision clearly could not be allowed. As a matter of fairness GPS, the claimant party, indicated that they wanted to put in what would have been a surrejoinder and they would have been entitled to have the “last word”.” (Paragraph 106.)

It seems that we now have clear guidance from the court on what an adjudicator may do, when he receives late submissions. Coulson J may have summarised the position in relation to a contractual adjudication based on the ICE adjudication procedure; Ramsey J was dealing with an adjudication under the Scheme for Construction Contracts. However, I would be very surprised if these principles did not, ultimately, extend to all forms of adjudication.

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