REUTERS | Fabrizio Bensch

Using “without prejudice” material in adjudication

My blog on what to do if a party seeks to rely on an earlier adjudicator’s decision on an unrelated project reminded me of another relatively common issue: what should an adjudicator do when one party includes without prejudice material in its submissions and the other party objects?

Without prejudice material has been dealt with by the courts. In Specialist Ceiling Services Northern Ltd v ZVI Construction (UK) Ltd, 20 February 2004 (unreported), the TCC said that adjudicators are generally commercially aware, will know that offers may be made for sound commercial reasons and do not indicate liability. Provided the adjudicator can put the without prejudice material out of his mind then he is OK to proceed with the adjudication; if not, then he should resign. In ZVI, the judge noted the adjudicator was “unfazed by the knowledge that there had been without prejudice negotiations”. Also, that there was objective evidence that he approached the adjudication “in an even handed manner”.

I’ve had it happen to me on a number of occasions:

  • Sometimes the material is identified by the other side before I see it. If so, it’s easy to deal with: someone simply has to redact or remove the offending material.
  • If I have seen the material, I then ask myself whether I can put it out of my mind. If so, I exclude it and proceed with the adjudication, noting the fact in my decision. If I can’t put it out of my mind, then I will resign.

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