Speymill Contracts Ltd V Baskind

It was not the case that the adjudicator in coming to his decision disregarded a material consideration, namely the allegation of theft by the contractor, or failed properly to address that issue
 

 

SPEYMILL CONTRACTS LTD V BASKIND
Court of Appeal
Waller and Jackson LJJ and Sir David Keene
25 February 2010

 
The contractor referred the payment dispute with the homeowner to adjudication. The homeowner contended by way of defence in the adjudication that he had served withholding notices in respect of the certificates, was unable to produce copies of the notices to the adjudicator, stated by way of explanation that employees of the contractor had stolen his files containing copies of the notice and that the copies he had on his computer had been corrupted by a power surge and submitted that the theft allegations could not properly be resolved by the adjudicator with the result that the adjudicator should make no award at all in the adjudication. The contractor submitted that the theft allegation was a tactic which should not be allowed to derail the adjudication. The adjudicator in his decision concluded on the balance of probabilities that the homeowner had not served withholding notices made it clear that he had taken into account the theft allegation in reaching that conclusion and awarded specified sums to the contractor. The homeowner refused to make any payment to the contractor and the contractor brought court enforcement proceedings.
 
The Court of Appeal held that it was not the case that the adjudicator in coming to his decision disregarded a material consideration, namely the allegation of theft by the contractor, or failed properly to address that issue. The adjudicator did address the allegation of theft to the extent that it was necessary for him to do so in reaching his decision and in a measured way. In particular he concluded on the balance of probabilities that the homeowner had not served withholding notices. The allegation of theft therefore did not justify not enforcing the adjudicator's decision in the light of the principles set out by Akenhead J in SG South v Kings Head Cirencester (2009) in relation to allegations of fraud in adjudications. The allegation of theft was raised directly before the adjudicator and dealt with by him. The homeowner’s case that there had been fraud on the contractor’s part did not come to light after the adjudicators' decision. Judgment was therefore entered in the contractor’s favour to enforce the decision.
 
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