London & Amsterdam Properties Ltd v Waterman Partnership Ltd

There was a live triable issue as to whether adjudicator was in breach of the rules of natural justice by having admitted additional new evidence and documentation served by the employer by way of "ambush" at the very end of the adjudication without giving the engineer an opportunity to respond to them
 
LONDON & AMSTERDAM PROPERTIES LTD v WATERMAN PARTNERSHIP LTD

Technology and Construction Court
His Honour Judge David Wilcox
18 December 2003
 
Before the adjudication the engineer's solicitors made several requests for information and documents on quantum but the employer's solicitors refused to give such information until the engineer had admitted liability. After the service of the engineer's response to the employer's case set out in its notice of referral, the employer's surveyor served a supplemental statement containing a great deal of new evidence and documentation on quantum seeking to make good the deficiencies identified in the engineer's response. This additional new evidence and documentation comprised much of the information which the engineer had unsuccessfully requested from the employer before the adjudication. The evidence and documentation were only provided towards the very end of the adjudication and formed no part of the exchange of views between the parties prior to the start of the adjudication. The adjudicator admitted the evidence and documentation and relied on them in coming to his decision of professional negligence on the engineer's part.
 
One of the grounds on which the engineer opposed the employer's application for summary judgment to enforce the decision was that the adjudicator had acted in breach of the rules of natural justice. Judge Wilcox agreed. He held that the adjudicator wrongly admitted the evidence and documentation. The employer had been guilty of an evidential "ambush" by having deliberately decided to withhold evidence and the adjudicator should have given the engineer an opportunity to respond to it. The adjudicator should have considered whether there were any grounds on which the employer should properly have been granted the indulgence of such late evidence being received. If the employer had supplied the quantum information when it was first requested by the engineer, both parties would have been able to consider their differences in a sensible commerciall way, reflecting the legal strength and weaknesses of their respective positions before the start of the adjudication.
 
Advice Note
Adjudicators must always be extremely careful to give a party sufficient time to give a full response to evidence served during the course of an adjudication of they are not to be in breach of the rules of natural justice.
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