Broughton Brickwork Ltd v F Parkinson Ltd (TCC - 21.10.2014)
The adjudicator was not in breach of the rules of natural justice by deciding that the contractors pay less notice was served out of time in a way not argued by the parties or by not taking into account a document establishing that it was served in time
21 October, 2014
BROUGHTON BRICKWORK LTD v F PARKINSON LTD
Technology and Construction Court
His Honour Judge Stephen Davies
21st October 2014
A dispute arose in respect of the sub-contractor’s payment entitlement under interim application 12 which the sub-contractor referred to adjudication. The adjudicator awarded the sub-contractor a specified sum and in so doing stated that (i) The contractor’s pay less notice in respect of 12 was invalid by reason of having been served out of time (ii) He was required to take into account the payment cycles for 13 and 14 and (iii) He had sufficient information to decide that the pay less notices in respect of 13 and 14 were (also) invalid by reason of having been served out of time.
The contractor in opposing enforcement contended that the adjudicator (i) decided that its pay less notice 14 was invalid on a basis which was not the way in which the parties had argued it and without first giving the parties the opportunity to comment on what he was proposing to decide and (ii) in deciding that issue failed through inadvertence to take into account the email by which it had served its letter setting out its pay less notice, which email had been placed before him by it in its bundle of documents served with its response and would, as the adjudicator subsequently acknowledged, have led him to reach a different conclusion had he considered it.
Judge Davies rejected the contractor’s contentions and held that the adjudicator was not in breach of the rules of natural justice.
The adjudicator was entitled (i) to proceed on the basis of the evidence and submissions placed before him in determining whether the pay less notice was valid because that issue was one which had been specifically raised by the contractor and not admitted by the sub-contractor and (ii) to approach this issue on the basis that it was an issue before him, albeit as he understood it not the subject of specific evidence by either party, and he could and should decide it without needing to revert further to the parties.
Whilst the adjudicator’s failure to have regard to the e-mail can properly be categorised as a procedural error in the sense that it was a document put before him to which he did not have regard (i) He did not deliberately decide to disregard it and (ii) It was substantially the contractor's fault that it had not drawn the existence or the importance of this document to the adjudicator's attention.