Beumer, a subcontractor for a baggage handling system at Gatwick Airport, started adjudication proceedings about NEC3 compensation events against the main contractor, Vinci, claiming that Airport Operational Readiness (AOR) had been achieved by 16 December 2015. At the same time, it started another adjudication, before the same adjudicator, against its sub-subcontractor, Daifuku Logan, concerning alleged failure by Logan to meet contract dates and claiming liquidated damages for delay. In this second adjudication Beumer said that Logan's works, (forming part of Beumer's works) had not achieved AOR by at least 12 April 2016. The two statements were, as the court found, factually inconsistent. Vinci did not know about the Logan adjudication but the adjudicator did. Should he have told Vinci about it?
The court said that it is important that adjudicators should not only act, but be seen to act, fairly. If unilateral telephone calls to an adjudicator are strongly discouraged, if not prohibited, because of apparent unfairness, it is very difficult, if not impossible, for an adjudicator to be permitted to conduct another adjudication, involving one of the same parties at the same time, without disclosing that to the other party. That other adjudication might involve telephone conversations and would involve the receipt of communications, including submissions, and possibly a hearing. If that all takes place secretly, unknown to the other party, there is a real possibility of bias.
Beumer's inconsistent case in the Logan adjudication could have been relied upon by Vinci to support its own case as to the correct AOR date. It was, however, deprived of the opportunity to seek an order from the adjudicator for disclosure of relevant material because the other adjudication's existence was kept from it. The breach of natural justice was plainly material. The question of the correct date for AOR was central to considerations of delay, and delay was central to considerations of whether instructions were indeed compensation events. The breach of natural justice was sufficiently material for the decision not to be enforced.