BARR LTD V KLIN INVESTMENT UK LTD

The terms of the adjudicator's decision in the third adjudication did not demonstrate that the adjudicator was apparently biased or in breach of the rules of natural justice
 
 

Scotland, Outer House, Court of Session
Lord Glennie
17 July 2009

 
The terms of the adjudicator’s decision in the third adjudication did not demonstrate that the adjudicator was apparently biased or in breach of the rules of natural justice
 
The employer contended that the terms of the adjudicator’s decision in the third adjudication demonstrated that he was apparently biased and in breach of the rules of natural justice. In relation to the contention as to apparent bias the employer submitted that it was obvious from the terms of his decision that the adjudicator had construed the further withholding notice by reference to the contractor’s knowledge at the time of the notice. In relation to the contention as to breach of the rules of natural justice, the employer submitted that the adjudicator ought to have put his proposed factual conclusions to the parties before issuing his decision in the third adjudication. Had he done so, the employer would have had an opportunity to refute the findings and to point out inconsistencies in them. The adjudicator had therefore denied the employer the opportunity of making appropriate representations prior to the issue of his decision. Such a denial was a breach of the requirement that the adjudicator hear both parties.
Lord Glennie rejected both contentions. As to the contention in relation to apparent bias whether one took the employer’s complaints singly or together, there was nothing in them which would lead any fair-minded and informed observer to conclude that there was a real possibility that the adjudicator was biased. The adjudicator attempted to construe the further withholding notice according to its terms and against the background of the knowledge which the contractor had. As to the contention in relation to breach of the rules of natural justice, the reasons given rejecting the employer’s specific complaints why the adjudicator was apparently biased also went some way to answering this contention. Even if those reasons were wrong it was not incumbent upon an adjudicator to put his proposed findings of fact to the parties to give them an opportunity of commenting on them. Whilst if the adjudicator took account of something within his own knowledge without the parties having been made aware of that, he should give them an opportunity of commenting, that was not so in the instant case. The adjudicator heard the parties, read their submissions and was fully entitled to proceed to a decision without giving a further opportunity for the parties to comment on his findings.
 
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