CJP Builders Ltd v William Verry Ltd

The adjudicator was wrong, as a matter of construction of DOM/2, to determine that he had no jurisdiction to extend the responding party's time for service of its response (beyond seven days) and was in material breach of the rules of natural justice in having made that determination
 
CJP BUILDERS LTD V WILLIAM VERRY LTD

Technology and Construction Court
Akenhead J
15 August 2008
 
 
The sub-contract incorporated DOM/2. Payment disputes arose which were referred to adjudication by the sub-contractor. The contractor was unable to serve its response to the referral within the seven days period provided for in the adjudication provisions of clause 38A of DOM/2 and served the response some five to six hours late. The adjudicator took the view that he had no jurisdiction to extend the seven days period (notwithstanding that he also made it clear that if he did have jurisdiction, he would have done so) and stated in his decision that he had not taken the response into account in making his award in the sub-contractor's favour. The sub-contractor brought court proceedings to enforce the decision.
 
Akenhead J held that the adjudicator was wrong to determine that he had no jurisdiction to extend the contractor's time for service of its response (beyond seven days) and in material breach of the rules of natural justice in having made that determination. The adjudicator had a discretion to extend the contractor's time for service of its response because (i) No provision of DOM/2 prevented the adjudicator from extending the time for service of the response (ii) Clause 38A.5.5 empowered the adjudicator to set his own procedure and, in his absolute discretion, to take the initiative in ascertaining the necessary facts and law and (iii) It would have been surprising as a matter of business common sense if the adjudicator did not have such a discretion in the event of the responding party being unable to serve its response on time. The adjudicator was in material breach of the rules of natural justice in consequence of his determination because (i) It was inevitable that the exclusion by the adjudicator of the contractor's substantial response (both in terms of argument and evidence) from his consideration would mean that his decision would be in the sub-contractor's favour (ii) The adjudicator's failure to consider the response was so pervasive as to mean that the only conclusion was that the breach was material and (iii) It was sufficient that there was a real (as opposed to a fanciful) possibility that the adjudicator would have reached a different decision if he had considered the response.
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