Balfour Beatty Construction Ltd V The Mayor and Burgesses of the London Borough of Lambeth
Technology and Construction Court
His Honour Judge Humphrey LLoyd QC
12 April 2002
The architect awarded three extensions of time and certificates of non-completion. The employer deducted damages for delay. The contractor maintained that it was entitled to further extensions of time. The adjudicator was asked to review the architect’s certificates of non-completion and awarded the contractor a (further) 35 weeks extension of time.
Judge Lloyd found that the contractor did little or nothing to present its case in a logical or methodical way in the adjudication. Its statement that it could not establish the critical path(s) since its as-built programme did not show it (them) resulted in the adjudicator reasonably and understandably concluding that he had to verify the as-built programme as a reliable record, divine a critical path and decide whether any logical and methodical analysis should be based on the contractor's original planned programme(s) and its as-built programme. The adjudicator proceeded on the basis of carrying out his own "collapsed as-built" analysis of the criticality of each event using one of the methods in the Society of Construction Law’s draft Protocol on Delay and Disruption.
The judge upheld the employer’s contention that the adjudicator in doing so had acted acted partially and with apparent bias and therefore in breach of the rules of natural justice. The adjudicator failed to inform the employer what he intended to do with the facts as ascertained by him, invite the employer to give its comments on whether the "as-built programme" or chart he had produced to depict actual progress was a suitable basis from which to derive a retrospective "critical path", inform either party of the methodology he intended to adopt or seek observations from the parties as to the manner in which that methodology might reasonably and properly be used to establish or test the contractor's case. Where, as in the instant case, an adjudicator in effect constructed (reconstructed) a party’s case for it without confronting the other party with that (new) case, it was such a potentially serious breach of the requirements of impartiality or fairness that the decision was invalid.
If an adjudicator reaches his decision without informing the parties of his proposed methodology and giving them the opportunity of commenting on it, he will be in grave danger of breaching the rules of natural justice.