The Dorchester Hotel Ltd V Vivid Interiors Ltd
Whilst the court had jurisdiction to make the declarations sought by the employer in relation to the future conduct of the adjudication and, in particular, to the risk of a breach of natural justice if it was conducted in accordance with the present timetable, they should not be made
18 January, 2009
THE DORCHESTER HOTEL LTD V VIVID INTERIORS LTD
Technology and Construction Court
19 January 2008
19 January 2008
The contractor commenced adjudication proceedings on its final account claim. The referral notice was 92 pages long, was accompanied by 37 lever arch files and was served just before Christmas. The adjudicator refused to take account of the Christmas period. Whilst the contractor agreed to an extension of the 28 day adjudication period (over and above the Christmas period), the employer maintained that the timetable was still too tight and that there was a very real risk of there being a breach of natural justice and sought declarations to that effect in the Part 8 proceedings.
Coulson J held that the court had jurisdiction to make the declarations sought by the employer, namely that (i) There was a serious risk of a breach of natural justice if the adjudication was conducted in accordance with the present timetable (ii) Any decision would be unenforceable by reason of breach of natural justice unless the parties agreed a realistic timetable and (iii) The adjudicator was entitled to resign the reference if the timetable was not extended by agreement of the parties to allow the employer a reasonable and fair date to serve its response. The judge went on, however, to hold that these declarations should not be made on the basis that (i) The adjudicator said in clear terms that he could fairly determine the adjudication by the original date, let alone the extended date (ii) Whilst the current timetable was plainly and obviously tight, it could not at this stage be said that it was incapable of giving rise to a fair result (iii) It was not possible at this stage to determine whether or not the referral notice contained so much new material of one sort or another that it meant that no dispute had crystallised at the time of the referral or that it was in fact impossible for the new material to be fairly responded to by the employer in the agreed time and (iv) The refusal to make the declarations at this stage did not leave the employer without a remedy since it could resist enforcement of an unfavourable decision on specific grounds for maintaining that there had been a breach of natural justice.