REUTERS | Tobias Schwarz

Using an adjudicator’s decision as evidence in a later adjudication

It is funny that Matt should write about the admissibility of a previous adjudicator’s decision in a later adjudication, where the parties were the same, the facts were similar but the project was entirely different.

Recently I have experienced this first-hand, but with a twist.

In my case, the referring party (I was acting for the responding party), sought to put before the adjudicator a previous adjudicator’s decision but this time the parties, the facts and the project were entirely different. The only common denominator was the referring party and the contract that was used by all the parties (the referring party’s standard terms and conditions).

The referring party included the first adjudicator’s decision with the referral papers. In drawing the adjudicator’s attention to it, the referring party wanted to use the first adjudicator’s decision to persuade the current adjudicator that he should interpret the contract in a certain way: in particular, as the previous adjudicator had found that all instructions were invalid unless signed by two of the referring party’s employees, so should the current adjudicator.

What did the current adjudicator do?

As the responding party, we hoped that the adjudicator would not attach much weight to the previous adjudicator’s decision. Thankfully that was the case and the adjudicator decided the case in our favour on this point. Specifically, he accepted our submissions that the fact that instructions issued to our client only had one signature, and not two, as specified in the referring party’s terms and conditions, was not fatal. In relation to the previous adjudicator’s decision, he said that as he wasn’t bound by it, he wasn’t obliged to follow it.

So what does this all mean in practice?

While a party may put before the adjudicator any evidence it considers appropriate, the adjudicator will not bound by it. Therefore it is questionable whether there is any merit in doing so. After all, if the evidence isn’t going to carry any weight with the adjudicator, including it only increases the costs of both parties and the adjudicator. Parties really should think twice about the material they include with their submissions.

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