Dean and Dyball Construction Ltd v Kenneth Grubb Associates Ltd

The fact that the adjudicator followed the Construction Industry Council Model Adjudication Procedure did not mean that the adjudication could have been conducted unfairly and contrary to the rules of natural justice and that the decision should therefore not be enforced
 
DEAN AND DYBALL CONSTRUCTION LTD v KENNETH GRUBB ASSOCIATES LTD

Technology and Construction Court
His Honour Judge Richard Seymour QC
28 October 2003
 
 
Rule 17(v) of the Construction Industry Council Model Adjudication Procedure provided, without prejudice to the generality of the adjudicator’s powers to have complete discretion as to how to conduct the adjudication without being required to observe any rule of evidence, procedure or otherwise of any court or tribunal, that the adjudicator could meet the parties separately.
 
The adjudicator made a decision in the contractor’s favour. The engineer resisted the enforcement of the decision. The engineer contended that the (mere) fact that the adjudicator followed this Procedure meant (of itself) that the adjudication could potentially have been conducted unfairly and contrary to the rules of natural justice. The engineer advanced this contention notwithstanding that it accepted that the adjudicator did not in fact conduct the adjudication unfairly, although he did take evidence from one party’s witnesses without the other party being present.
 
Judge Seymour rejected the contention. Natural justice and fairness required that if an adjudicator received a communication about a matter of significance from one party alone, he should inform the absent party of the substance of the communication so as to give that party an opportunity to deal with. It was relevant in this connection whether a procedure for the conduct of the adjudication had been agreed as a matter of contract. Rule 17 gave the adjudicator a discretion as to how to conduct the adjudication and that discretion, although described in the rule as “complete”, was not unfettered insofar as the adjudicator still had to observe the fundamental requirements of natural justice.
 
However, natural justice did not necessarily require (1) that a party had an opportunity to cross-examine witnesses or (2) that evidence for one party had to be taken in the presence of the other party. In addition it was doubtful whether taking evidence without the other party being present could ever be appropriate in the absence of a provision in the procedure adopting such a course unless the tribunal indicated to the absent party what had been said to which the tribunal was minded to have regard and providing an opportunity for a response.
 
Advice Note
There is nothing inherently contrary to the rules of natural justice in an adjudicator taking evidence from one party’s witnesses being present but the adjudicator should indicate to the absent party what had been said which is minded to have regard and provide an opportunity for its response.
 
Download