Rok Building Ltd V Celtic Composting Systems Ltd (Part II)

The contractor's contention that the adjudicator acted in breach of the rules of natural justice by reaching a decision contrary to the overwhelming weight of evidence and by wrongly failing to apply the "slip" rule to correct the errors in his decision pointed out by it should be rejected



Technology and Construction Court
Akenhead J
22 January 2010
The adjudicator awarded the sub-contractor a specified sum. The contractor refused to pay on the ground that the the adjudicator had failed to apply the rules of natural justice in a number of respects.
Akenhead J rejected this contention on the following basis. The courts had time and again made it clear in the field of adjudication enforcements that the fact that he or she answered the relevant factual or legal questions incorrectly the decision was still enforceable, even if the error was mathematical. The TCC and the appellate courts would be very slow to characterise even glaringly obvious errors made by adjudicators acting within their jurisdiction as breaches or evidence of breaches of the rules of natural justice to which all adjudicators were subject. It was not the court’s function to conduct what was in effect a review of the relative correctness of an adjudicator's decision to determine the extent to which he or she "got it wrong". No finding should be made as to whether the adjudicator made a mistake, obvious or otherwise, in relation to the sums owing to the contractor in accordance with the adjudicator’s decision by reference to what sums were paid by the contractor under the various certificates. In any event the mere fact that there was an error, even if it was a glaring and serious error, should not affect the enforceability of the decision. The adjudicator’s decision in relation to when the sub-contractor achieved completion of its works was not obviously wrong and was not one which on the facts no adjudicator acting fairly and reasonably could not have reached. The complaint that the adjudicator failed to apply the slip rule correctly or fairly and that he acted contrary to the rules of natural justice by refusing to correct the decision as requested were not justified because he was best placed to determine whether there really was an "accidental" error or omission. There was nothing obviously accidental in what he decided insofar as he was invited in effect to revisit his decision on the facts, the law or the merits. Lastly it was not surprising that even an experienced adjudicator found the contractor’s calculation less than comprehensible.