Ardmore Construction Ltd v Taylor Woodrow Construction Ltd

The adjudicator was in breach of the rules of natural justice in having made an award in the sub-contractor's favour on the basis of a ground not advanced by the sub-contractor when at no time prior to the decision had there been any discussion in relation to this ground

Scotland, Outer House, Court of Session
Lord Clarke
12 January 2006
The issue for determination in the court enforcement proceedings brought by the sub-contractor was whether the award made by the adjudicator in the sub-contractor's favour in relation to its overtime working claim should be enforced where the ground upon which the adjudicator based his claim, namely the contractor having acquiesced or having issued verbal instructions authorising the working, had not allegedly been discussed by the adjudicator with the parties prior to the issuing of his decision. The sub-contractor accepted for the purposes of the court enforcement hearing that if the court found that the alternative ground which formed the basis of the adjudicator's award had not been discussed at a meeting before the adjudicator as the sub-contractor contended, the court could properly find that the award had been made by the adjudicator in breach of the rules of natural justice. Lord Clarke in holding that the adjudicator had acted in breach of the rules of natural justice stated that whilst the courts should be generally resistant to invitations to pick over adjudicators' decisions and to analyse their procedures over closely and critically, one of the key principles of fair play operating in relation to a decision making process like that of adjudication was that each side was made aware of the case that has been made against it and had an opportunity to respond to that case. The sub-contractor's position was that these matters had been raised at the meeting but that the contractor's representatives had either not heard them or had not grasped their potential significance. However, the judge held that the evidence indicated that it is highly improbable that all four of the contractor's witnesses failed to hear or misunderstood submissions on the lines which the adjudicator and the partner in the firm of solicitors representing the sub-contractor said in evidence were made openly at the meeting. The meeting was designed simply to check the sub-contractor's work records in relation to the quantification on their claim and there was nothing in the way of submissions or evidence led on behalf of the sub-contractor regarding the contractor having acquiesced or issued verbal instructions.