Try Construction Limited V Eton Town House Group Limited

No breach of the rules of natural justice by the adjudicator where the parties agreed at the outset to the adjudicator's programming expert acting independently and using his own expertise and did not request the expert to produce a preliminary or draft finding as a basis for them making further submissions
 
TRY CONSTRUCTION LTD v ETON TOWN HOUSE GROUP LTD

Technology and Construction Court
His Honour Judge David Wilcox
28 January 2003
 
 
The contractor made a claim for an extension of time, associated loss and expense and the repayment of liquidated damages. The parties agreed that the adjudicator should use the services of a programming expert who would investigate the claim on his own terms using his own expertise and would carry out his own independent analysis if he thought that appropriate. In the event the parties did not request the expert to produce a preliminary or draft finding as a basis for the parties making further submissions.
 
The employer challenged the decision made in the contractor's favour on the basis that it had not had the opportunity of considering or commenting on the methodology used by the programming expert with the result that the adjudicator acted in breach of the rules of natural justice. Judge Wilcox rejected this challenge on the basis that on an analysis of the decision, no matters were considered outside the arguments developed by the parties.
 
The critical part of his reasoning was that the parties recognised at the outset that the programming expert was free to use his own initiative and that he would analyse the claim for an extension of time on an as built basis. In that sense the decision was clearly the product of the process to which the employer agreed, even though the parties were not asked to comment on the expert's findings before the adjudicator came to his decision. The employer had no good cause to complain for the first time at the enforcement stage about was the judge characterised as a transparent process which had been sensibly and pragmatically agreed by the parties.
 
Advice Note
Judge LLoyd in Balfour Beatty v Lambeth held that the adjudicator was in breach of the rules of natural justice where adjudicator's assessment of the extension of time was arrived at on the basis of a method of analysis chosen by him without giving the defendant the opportunity of commenting on it. The circumstances of that case were, however, not comparable to those in this case where the parties were well aware of and agreed to the process adopted by the adjudicator and his programming expert.
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