Pilon Ltd v Breyer Group Plc

Propositions of Coulson J as to the adjudicator's obligation to attempt to answer the question referred to him and the consequences of the adjudicator failing to do so in terms of the enforceability of his decision


Technology and Construction Court
Coulson J
23 April 2010

Whilst an adjudicator’s inadvertent mistake when answering the question put to him would not ordinarily affect the enforcement of his decision (see the Court of Appeal’s decision in Bouygues v Dahl-Jensen (2000)), if the adjudicator considered and purported to decide an issue which was outside his jurisdiction, his decision would not be enforced (see Sindall v Solland (2001)) or took an erroneously restrictive view of his own jurisdiction, with the result that he decided not to consider an important element of the dispute referred to him, this failure was usually categorised as a breach of natural justice. The adjudicator had to attempt to answer the question referred to him on the basis that the question might consist of a number of separate sub-issues and if the adjudicator endeavoured generally to address those issues in order to answer the question, his decision was enforceable regardless of whether it was right or wrong (see Carillion v Devonport Royal Dockyard). If the adjudicator failed to address the question referred to him because he took an erroneously restrictive view of his jurisdiction (and had for example failed even to consider the defence to the claim or some fundamental element of it), that failure might make his decision unenforceable on grounds of jurisdiction or natural justice (see Ballast v The Burrell Company (2001), Broadwell v k3D (2006) and Thermal Energy Construction v AE and E Lentjes (2009)). If, however, such a failure was to make the decision unenforceable, it had to be deliberate so that the decision would not ordinarily be unenforceable if there was simply an inadvertent failure to consider one of a number of issues embraced by the single dispute that the adjudicator has to decide (see Bouygues v Dahl-Jensen (2000) and Amec Group v Thames Water Utilities (2010)), to be material (see Cantillon v Urvasco and CJP Builders v William Verry (2008) and to have had a potentially significant effect on the overall result of the adjudication (see Keir Regional v City and General (2006)). A possibly relevant factor was whether or not the referring party brought about the adjudicator's error by a misguided attempt to seek a tactical advantage, for example where Judge Davies rightly took this into account in Quartzelec v Honeywell Systems (2008).