Jacques & Anr v Ensign Contractors Ltd [2009] EWHC 3383 (TCC)

In defending enforcement proceedings, Ensign suggested that the adjudicator did not apply the rules of natural justice by refusing to read or take into account an earlier decision. It was said that the adjudicator must, by inference, have failed to consider the arguments and defences put forward in that earlier decision. By not reading that earlier decision, he could not have understood or considered the defences which were put forward fully or effectively. Mr Justice Akenhead summarised the legal position:

  1. The adjudicator must consider defences properly put forward by a defending party in adjudication;
  2. However, it is within an adjudicator’s jurisdiction to decide what evidence is admissible, helpful or unhelpful. If, within his jurisdiction, the adjudicator decides that certain evidence is inadmissible, that will rarely (if ever) amount to a breach of the rules of natural justice.
  3. Even if the adjudicator’s decision (within his jurisdiction) to disregard evidence as inadmissible was wrong in fact or in law, that decision is not a breach of the rules of natural justice.
  4. There is a need to distinguish between a failure by an adjudicator to consider and address a substantive (factual or legal) defence and an actual or apparent failure to address all aspects of the evidence which go to support that defence. The adjudicator needs to address the substantive issues, whether factual or legal, but does not need (as a matter of fairness) to address each and every aspect of the evidence.  

Here the Judge was satisfied that the adjudicator did not fail to apply the rules of natural justice. For example, although the adjudicator had said he was going to disregard the earlier decision, the contractor still had what was termed as the “fullest opportunity” to submit any further evidence he wished to in light of that ruling. Looking at the adjudication as a whole it was also clear that on every material point in issue in relation to the final account, the contractor not only had the opportunity, but took that opportunity, to submit evidence and argument. Indeed, the adjudicator had reduced the employer’s claim by some 70%. The decision was duly enforced.