Last month, in Paton and another, Re Judicial Review, Lord Bannatyne enforced an adjudicator’s decision even though the adjudicator had relied on his own knowledge and experience in arriving at certain conclusions. Now the Scottish court has been asked the same question again (in SGL v RBG) but this time Lord Glennie refused to enforce the adjudicator’s decision.
Why did the court arrive at two different outcomes when, on the face of it, it was being asked the same question, arising out of the same type of allegation?
Using your own knowledge and experience
In Paton, the home owner argued that there hadn’t been a fair hearing because (among other things) the adjudicator had applied his own knowledge and experience to the issues before him and hadn’t come back to the parties to seek their submissions on his approach and interim conclusions.
In SGL v RGB, the contractor ran a similar argument, alleging the adjudicator had used his own knowledge and experience to make factual determinations where there was no evidence and he had not given them a reasonable opportunity to comment.
In both cases, the adjudicator was alleged to have breached the rules of natural justice. But that is where the similarities in the two cases end.
What were the allegations in SGLv RGB?
Two of the issues in dispute related to labour productivity (relating to shiftwork (issue 18) and pipework (issue 19)). On each occasion, Mr Ross set out in correspondence the factors that he said he was going to take into account from his own knowledge. He went further than this though, and also explained the range of lost productivity that he thought was appropriate. He gave the parties about a day to respond on each issue.
It was no surprise that the contractor responded. On issue 18, the contractor argued that Mr Ross was using facts from one project and applying them to this dispute; that there was no evidence for the “arbitrary percentage deduction”; and that Mr Ross had no direct knowledge of what happened on site and had not questioned key witnesses about what happened. In subsequent correspondence, Mr Ross sought to explain his experience to the parties (paragraphs 16-19, judgment).
On issue 19, the contractor made similar submissions, inviting Mr Ross to provide evidence of his relevant knowledge and experience so it could comment on it. It also suggested that as the employer’s site representative (who was on site every day) did not think productivity was an issue, Mr Ross was “[inventing] a case where none existed” (paragraph 26, judgment).
Crossing the line
I wrote about Paton, both in terms of the own knowledge point and also on how an adjudicator may look at events that have caused delay (which may also require the adjudicator to consider his own experience as part of the mix of factors to take into account). I cautioned against adjudicators going too far. The court said that Mr Strathdee didn’t go too far. However, in SGL v RGB it looks like Mr Ross crossed the line. It looks like he went from evaluating the evidence before him to, effectively, offering expert evidence that could not be properly tested by the parties in the time allowed. It is arguable that Mr Ross’s approach was well-intended, but it was clearly risky and hardly appropriate. I’m not surprised Lord Glennie refused to enforce his decision.
I don’t think that adjudicators should be put off from using their own knowledge and experience (it is often why we are appointed), but they should read this judgment and take note of the circumstances that led to the adjudicator’s excessive use of his own knowledge and experience. Equally, Lord Ballantyne’s seven-point guidance in Paton is a useful reminder of how to approach this issue. As ever, if in doubt, raise it with the parties and give them a reasonable time to respond.