Wycombe Demolition Ltd v Topevent Ltd (TCC - 31.7.2015)

The adjudicator’s alleged failure to decide the dispute as to the valuation of the works on the basis of the parties' submissions and his alleged determination of that issue on a basis not canvassed before the parties did not constitute a breach of the rules of natural justice.
 

WYCOMBE DEMOLITION LTD v TOPEVENT LTD

Technology and Construction Court

Coulson J

31st July 2015

Coulson J in coming to this conclusion stated that the adjudicator had been faced with a myriad of different approaches to the issue of the valuation of the works because (i) The contractor based its claim on its invoices, albeit with adjustments to reflect an attempted revaluation exercise but (ii) The employer sought to review and revalue both the original and the adjusted invoices. The adjudicator concluded that "the invoices generally properly reflect the sums due", although he too made a number of adjustments.

 

Far from coming to a decision that was based on his own independent approach to the figures, the adjudicator (i) carefully considered both parties' submissions and (ii) then provided his own valuation based on his analysis of the evidence and on those submissions as he was entitled to do.

 

More widely an adjudicator (i) has to do his best with the material with which he is provided (ii) has considerable latitude to reach his own conclusions based on that material and (iii) is certainly not bound to accept either one or other of the figures advanced by the parties. As happened in the instant case, an adjudicator's conclusion about the nature and terms of the contract could affect his approach to valuation issues.

 

The limits of this power are also well-defined in the cases as to what an adjudicator cannot do, so that, for example, an adjudicator may not, certainly without warning the parties in advance of his decision (i) make good the deficiencies in the claimant’s case or (ii) plug what he sees as a gap in that case by having regard to something which he has been told expressly to ignore.

 

The employer’s submission that this is what the adjudicator did here should be rejected as a mischaracterisation of the adjudicator's decision because (i) The adjudicator did not create an entirely new exercise which the parties had not seen before or rely on something which he had been told not to and simply considered the muddled claim documentation, the even more muddled response and the evidence before coming to a conclusion (ii) The adjudicator’s conclusion that the claims in the contractor’s contemporaneous invoices were broadly valid and correct could hardly be described as radical or new or as filling in of gaps in the contractor's case and (iii) Instead the invoices were the contractor's case, or at least one version of it.

Download