Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction

Propositions derived from caselaw as to what an adjudicator was required to give in terms of reasons if he was obliged to give a reasoned decision and the consequences of his failing to do so
 

BALFOUR BEATTY ENGINEERING SERVICES (HY) LTD V SHEPHERD CONSTRUCTION LTD

 

Technology and Construction Court
Akenhead J
1 September 2009

 
Propositions derived from caselaw as to what an adjudicator was required to give in terms of reasons if he was obliged to give a reasoned decision and the consequences of his failing to do so
 
Akenhead J set out the following such propositions. The decision needed to be intelligible so that the parties could know objectively what the adjudicator decided and why. A decision which was wholly unreasoned but which was required to be reasoned was not a decision which was a decision for the purposes of the Scheme for Construction Contracts or under contractual machinery which required a reasoned decision or enforceable as such. The fact that the reasons given were demonstrably or otherwise wrong in fact or in law or even in terms of emphasis would not give rise to any effective challenge because the courts had said the decision could not be challenged on the ground that the adjudicator answered the questions which he or she was required to address wrongly. The fact that the adjudicator did not deal with every single argument of fact or law would not mean that the decision was necessarily unreasoned because he or she only had to deal with those arguments which were sufficient to establish the route by which the decision had been reached. The failure to give reasons was not a breach of natural justice. Whilst the reasons could be expressed simply, the decision would not be reasoned if they were so incoherent that it was impossible for the reasonable reader to make sense of them. Adjudicators were not to be judged too strictly, for instance by the standards of judges or arbitrators, in terms of the reasoning, which reflected the facts that decisions often had to be reached in a short period of time by adjudicators who were often not legally qualified and there has not been a full judicial or arbitral type process. The fact that the reasoning in a decision was repetitive, diffuse or even ambiguous did not mean that the decision was unreasoned. As a matter of policy Parliament in passing the Construction Act would not have had in mind a challenge on the basis that some arguably logical link in the chain of reasoning was missing from the decision provided that the broad thrust of the reasoning was given because otherwise many adjudicators' decisions would be open to an effective challenge.
 
Download