SGL Carbon Fibres Ltd V RBG Ltd
Scotland, Outer House, Court of Session
31 March 2011
An adjudicator was permitted to take the initiative in ascertaining the facts and the law applicable to the dispute. However, he had to be careful to make sure that he did not deprive the parties of a proper opportunity of presenting their respective cases. It was open to the adjudicator to bring his experience to bear on the submissions made by the parties and the evidence led by them without notifying them that he was proposing to do so because (i) That was why, in many cases, an adjudicator having practical experience of the construction industry was chosen (ii) If he had relevant experience, he would be failing the parties if he failed to take advantage of it and (iii) It was implicit in the whole process that he would use his experience to evaluate the evidence and submissions presented to him in this way. It was, however, quite another thing for an adjudicator to use his knowledge and experience (i) to add to the evidence led by the parties (ii) to explore the evidence for himself or (iii) to introduce into his decision making process matters upon which the parties had not focused their attention or had led no evidence. As to the argument that the adjudicator should not fashion an argument or fill in the gaps so as to relieve a party from the consequences of its failure to adduce sufficient evidence (i) This argument was not pressed before the court with the result that it should not be suggested that there was a line which the adjudicator could not cross or, if there was, to attempt any definition of where it was to be drawn since much would depend on the circumstances but (ii) If the adjudicator followed that course, it was incumbent upon him to provide the parties at a time which enabled them to comment sensibly and on an informed basis with a full explanation of his intended approach, the nature of the experience he brought to bear relevant to the particular matters and the conclusions of fact or law to which that experience drove him. What that time was again depended on the circumstances.