Beumer Group UK Ltd v Vinci Construction UK Ltd (TCC - 13.9.2016)
Fraser J held that the adjudicator was in breach of the rules of natural justice by being guilty of apparent bias and of procedural unfairness in conducting the adjudication begun by the sub-contractor against the contractor on the basis that (i) He conducted a parallel adjudication begun by the sub-contractor against a sub-sub-contractor at the same time on similar issues involving the same project without disclosing its existence to the contractor and (ii) The contractor in consequence was not provided with the necessary material to know that this other adjudication involved the sub-contractor advancing a factually inconsistent case on the relevant date for completion by way of airport operational readiness.
Dyson LJ stated in Amec Capital Projects v Whitefriars City Estates (2004) in relation to the impartiality of the tribunal that there needs to be something of substance to lead the fair minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear. The "something of substance" was the adjudicator’s appointment in the adjudication between the sub-contractor and the sub-sub-contractor at the same time and conduct of that adjudication, with all that involved in terms of contact with the sub-contractor, without notifying the contractor of that fact.
The same approach could be said equally to apply to found a complaint of breach of natural justice by procedural unfairness, namely that there must be "something of substance". That could be just another way of stating that any breach of natural justice must be material or plain and obvious. In this case the "something of substance" in relation to procedural unfairness was (i) The circumstances of the other adjudication, including the non-disclosure both of its existence and of the fact that the adjudicator was acting in it and (ii) The consequential keeping from the contractor (as a direct result of that) of the factually inconsistent case which the sub-contractor was advancing in the other adjudication.
The dispute referred to adjudication by the sub-contractor was (i) Whether contractor’s instructions were compensation events and (ii) Their effect on the completion date for the sub-contract works. The condition of the sub-contract works and whether they had achieved airport operational readiness was therefore both relevant and part of the factual matrix being considered by the adjudicator in determining whether the contractor’s instructions were compensation events.