When the Construction Act was first introduced, there was great concern as to the possibility of an "ambush" and what if anything could be done about it. The Dorchester Hotel case on 19 January for the first time raised the question of whether the Court could interfere in an ongoing adjudication on the grounds that there had been breaches of the laws of natural justice by reason of an "ambush".
The defendant contractor had commenced adjudication proceedings on 19 December 2008 by a referral notice running to some 92 pages accompanied by 37 lever arch files and two experts' reports. An extension of the 28 day adjudication period had been agreed allowing the adjudicator time to reach his decision by 28 February 2009. However this was not sufficient for the claimant who sought a declaration that a breach of natural justice had occurred and the adjudicator was entitled to resign the reference. The defendant maintained that the Court had no jurisdiction to grant the declaration and that the majority of the final account documentation which was the subject of the reference had been with the claimant since March 2008.
The Court decided that it did have jurisdiction and that if an adjudication was fundamentally flawed in some way then it was sensible for the parties to be able to have recourse to the Technology and Construction Court. The situation was similar to an application to the Court to the effect that the adjudicator had no jurisdiction. An injunction might even be granted in appropriate circumstances although this would be rare.
The case of CIB in 2005 had held that it was for the adjudicator to decide whether or not he could fairly reach a decision within the timetable. It was true to say that the defendant had commenced the adjudication proceedings in such a manner as to obtain the greatest possible advantage from the summary Adjudication Procedure - not least as the referral notice was served just prior to the Christmas break. However the Court determined that it should not grant the declaration sought. The most important reason was that the adjudicator had said that he could decide the adjudication by the extended date of 28 February. If he continued to conduct the adjudication in a fair manner, the award would be enforced.
The Court could not determine whether there was so much new material that no dispute had crystallised by the time of the referral to adjudication. At present it could not be said whether this was the case in advance of the adjudicator's decision. Further, if the claimant was able to point subsequently to specific breaches of natural justice in the adjudicator's conduct of the adjudication, then it would be able to resist enforcement on those grounds. However such an exercise could not be undertaken at the present stage.
Are there, therefore, any circumstances in which the Court might intervene in relation to an ambush? One possible route left open by this Judgment is a situation where the dispute was not crystallised. There might have been stronger grounds for arguing this point if all the material placed before the adjudicator was new. It was held that this was not the case even though some figures had changed. In addition, if it can be demonstrated that there have already been breaches of the rules of natural justice on the part of the adjudicator, then the Court might perhaps intervene to prevent their repetition; the same would also be true if the adjudicator could be shown to have exceeded his jurisdiction. However, the danger of an ambush still remains at least in the limited circumstances made evident by the facts of this case.