Kier Regional Ltd v City And General (Holborn) Ltd (Part I)

The adjudicator's decision was not made in breach of the rules of natural justice notwithstanding that the adjudicator refused to consider two expert reports submitted on behalf of the employer during the course of the adjudication
 
KIER REGIONAL LTD v CITY & GENERAL (HOLBORN) LTD (Part I)

Technology and Construction Court
Jackson J
6 March 2006
 
The adjudicator made a decision in favour of the contractor which brought court proceedings to enforce the decision. The employer resisted enforcement on the ground that the adjudicator, in breach of the rules of natural justice, had refused to consider two expert reports submitted on behalf of the employer during the course of the adjudication which he considered had been submitted too late.
 
Jackson J rejected this ground and ordered enforcement notwithstanding that he acknowledged that there was considerable force in the employer's contention that the adjudicator ought to have taken the reports into account. The judge held that it was not necessary to decide this point since the adjudicator's alleged error in not taking the reports into account could not have invalidated his decision. This was because it could be seen from the decision as a whole that the adjudicator considered each of the arguments advanced by the employer in its response and that at worst the adjudicator made an error of law by disregarding relevant evidence which would not in any event have rendered the decision unenforceable in the light of the statements of Chadwick LJ in Carillion Construction v Devonport Royal Dockyard. Chadwick LJ stated in that case that it was only too easy in a complex case for a party dissatisfied with the decision of an adjudicator to comb through the adjudicator's reasons and identify points upon which to present a challenge under the labels "excess of jurisdiction" or "breach of natural justice". Therefore the proper course in the overwhelming majority of cases was for the unsuccessful party to pay the amount that he has been ordered to pay by the adjudicator on the basis that if he did not accept the adjudicator's decision as correct (whether on the facts or in law), he could take legal or arbitration proceedings to establish the true position. In particular to seek to challenge the adjudicator's decision on the ground that he had exceeded his jurisdiction or had breached the rules of natural justice was likely (save in the plainest cases) to lead to a substantial waste of time and expense. The instant case was not such a "plain" case.
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