Sometimes I’m glad that I don’t have many years’ experience in civil engineering like Dr Robert Hunter in Carillion v SP Power or Mr George Ross in SGL Carbon Fibres Ltd v RBG Ltd. If I did, it may just make being an adjudicator all the more difficult since I may find it harder to draw the line between using the parties’ materials and submissions to determine an issue, and drawing on my own knowledge and experience, either to fill gaps in the evidence or when I don’t like what is before me.
That said, adjudicators don’t always get it wrong and go too far. Sometimes it is OK to use the stuff tucked away from years and years of experience. I’m thinking of the adjudicator in Re Paton or Mr Alan Turner in Hyder v Carillion.
Challenging adjudicators’ use of own knowledge and experience
However, there does seem to be a trend developing.
Ever since statutory adjudication was introduced back in 1998, it has been the subject of judicial interpretation, defining the scope and limits of the process. Just as the courts have been willing to support the process (and adjudicators), the parties involved have bent over backwards to come up with new ways to challenge the process. Every time the courts seemingly close one avenue of challenge, up pops another one.
Over the last three years or so (but perhaps more so, more recently), I have noticed that the parties have been attacking the adjudicators’ decisions, favouring arguments founded on a breach of the rules of natural justice occasioned by the adjudicator’s failure to share with the parties information that he has derived from his own knowledge or experience, rather than from their submissions. This has sometimes been referred to as the adjudicator “going on a frolic of his own” and may result in the adjudicator’s decision being unenforceable.
Not every occasion when such a challenge is made proves to be successful. However, it should make adjudicators stop and think, before they veer away from the parties’ submissions. The key message for me is that it’s OK to use your expertise and knowledge to evaluate evidence, but not as a source of evidence.