John Sisk & Son Limited (“Sisk”) has successfully obtained an order for summary judgment in adjudication enforcement proceedings in the Technology and Construction Court. The judgment of Edwards-Stuart J was handed down on 25 January 2016. Eversheds LLP and Nicholas Collings of Atkin Chambers acted for Sisk.
The dispute concerned an area of law where few case authorities exist. The defendant, Duro Felguera UK Limited (“Duro”) raised a number of jurisdictional challenges, including that the decision of the adjudicator was unenforceable on the basis of the adjudicator’s alleged “predetermination” of certain issues before issuing his final Decision.
The judge applied the ‘fair-minded observer’ test. In other words he considered whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of predetermination.
The judge considered the wording of the letter in which the adjudicator made his alleged ‘predetermination’, including the fact that the adjudicator referred to it as a ‘non-binding opinion’. He also considered events both up to and following the alleged ‘predetermination’, and found that Duro had been given every opportunity to present the arguments it wished prior to the adjudicator issuing his Decision.
Edwards-Stuart J stated that “it is clear from the authorities that the circumstances have to be considered at the time when the matter comes before the court, so that all the circumstances which by then would be known to a properly informed and fair-minded observer fall to be taken into account”. He concluded that “it would in my view be quite artificial not to consider the manner in which the Adjudicator went about reaching his Decision when deciding whether or not there was a real danger that he had approached the issues with a closed mind” and held that this ground for challenging the Decision failed.
Duro also objected to the adjudicator’s decision to involve a third party assistant in various tasks during the adjudication. Duro contended that the adjudicator had in effect delegated part of his decision-making role and in doing so had breached natural justice.
Edwards-Stuart J found no evidence that any material decision or valuation was taken by the assistant. On the contrary he considered that the evidence was consistent with the third party performing a role as a data handler and general administrative assistant. The judge commented that “Without the assistance of someone who could assemble and manipulate the data in a manner that made the figures manageable, the Adjudicator’s task would have been almost insuperable”. Therefore Duro’s challenge under this head also failed.
The judgment is another illustration of the principle that the courts will examine critically allegations of breach of natural justice when they are raised by parties who are seeking to avoid complying with adjudicators’ decisions.
Duro has applied for permission to appeal.