Seventeen years after the Construction Act went live, the ground rules of adjudication are still being tested. In Wycombe v Topevent the employer challenged enforcement of an adjudicator’s decision, claiming that there was more than one dispute and that there were breaches of natural justice, because the adjudica- tor did not have a site visit or meeting and did not decide the dispute on the basis of the parties’ submis- sions. In dismissing the challenges, Mr Justice Coulson restated some key principles of adjudication
He decided that a demolition contractor’s claim for the costs of an allegedly wrongful termination and its overall claim for all outstanding sums were not separate disputes. There was a clear and obvious link between them. Even if they were separate disputes, under the applicable TecSA rules the parties could agree to include further matters in the adjudication and the employer had acquiesced in, and not objected to, the adjudicator dealing with both claims.
The adjudicator did not have to have a site visit or meeting. Organisation of an adjudication, the procedure and the steps required before the decision is issued, are all matters uniquely for the adjudicator. It is up to them to decide what they need in order to reach their decision.
The judge also ruled that the adjudicator’s valuation decision had been based on both parties’ submissions. More widely, the judge said that an adjudicator has to do their best with the material provided and has considerable latitude to reach their own conclusions based on that material. In his view, that latitude is inevitably even wider, now that the original Construction Act requirement of a written contract has gone. An adjudicator’s conclusion about the nature and terms of the contract could affect their approach to valuation issues. What an adjudicator cannot do, however, and certainly not without warning the parties in advance of the decision, is to make good deficiencies in the claiming party’s case or to plug what they see as a gap in that case, by having regard to something they have been told to ignore.