AWG Construction Services Ltd v Rockingham Motor Speedway Ltd

The adjudicator was in breach of the principles of natural justice by failing to afford the contractor a proper opportunity to give a fully considered response to the additional material served by the employer at the very end of the adjudication in support of its new allegation
 
AWG CONSTRUCTION SERVICES LTD v ROCKINGHAM MOTOR SPEEDWAY LTD

Technology and Construction Court
His Honour Judge John Toulmin CMG QC
5 April 2004
 
 
The employer served its reply to the contractors second response to the employers original allegation of negligence at the very end of the adjudication and just a week before the adjudicator made his decision. The reply raised a radically new case based on a statement made by its expert witness in which that expert in effect had abandoned his previous opinion as to why the contractor failed to exercise due skill and care as to the way in which the contractor should have designed the race track and for the first time said clearly that the problem was not caused by the layer but by the absence of drainage to the layer.
 
Judge Toulmin held that the adjudicator was in breach of the principles of natural justice in the procedure he adopted by failing to afford the contractor a proper opportunity to give a fully considered response to this additional material served by the employer with its reply. This was on the basis that the contractor was clearly prejudiced by the lack of such an opportunity in that the adjudicator found in favour of the employer in respect of this allegation.
 
It was stated in the commentary of CPR 17 of the White Book that one important factor for the court to consider when permission to amend was sought close to the trial date was whether the amendment would put the parties on an unequal footing or place or add an excessive burden to the respondent's task of preparing for trial. Whilst adjudication could not be regarded as equivalent to court proceedings or arbitration, the above test in the White Book was a useful pointer in the context of assessing the fairness of late allegations or additional evidence in adjudication. The employers claim after the service of the reply was far removed not only from the employer's notice of adjudication and its referral notice, but also from the dispute that the adjudicator asserted had crystallised some three weeks earlier.
 
Advice Note
The courts are now making it clear that if an adjudicator allows the type of procedural ambush as in this case, they will hold that the decision is unenforceable.
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