Gibson (Banbridge) Ltd v Fermanagh District Council (NI, QBD - 4.2.2013)
The adjudicator was not in breach of the rules of natural justice by only allowing the local authority seven days to serve its response to the contractors claim based on its payment application
4 February, 2013
GIBSON (BAINBRIDGE) LTD v FERMANAGH DISTRICT COUNCIL
Northern Ireland, Queen’s Bench Division
4th February 2013
The local authority requested a period of three weeks to prepare its response to the referral to adjudication by the contractor of the dispute as to the value of its payment application. The adjudicator refused the request and insisted on the response being served within seven days on the basis that (i) The local authority had had payment application 14 in its possession for some considerable time (ii) Minutes of a council meeting recorded that the local authority had completed its assessment of the claim and (iii) It would be unfair on the contractor to prepare a reply to the response within four days if an extension of the period of time for service of the response were to be extended.
The local authority submitted that (i) There was not sufficient time for it to make a proper response in the 7 days that were allowed (ii) The project manager made his assessment of the payment due to the contractor subsequent to the adjudicator's decision and it had paid that assessed sum (but not the sum awarded).
Weatherup J held that the adjudicator was not in breach of the rules of natural justice by only allowing the local authority seven days to serve its response despite the facts that (i) The claim was a very substantial one which amounted to over £2m and (ii) The contractor’s information relating to the claim which it served at the beginning of the adjudication comprised 63 lever arch files of documents.
The local authority was afforded a reasonable time to make its response given the opportunity that existed before the notice of adjudication for it to address the payment application which formed the basis of the contractor’s claim. The seven day response time directed by the adjudicator cannot be looked at in isolation because (i) The claim had been pending for many months (ii) The local authority had had the opportunity for extensive inspection of the records and had spent many days examining the records and (iii) It had a reasonable time to make an assessment of the application for payment prior to the issue of the notice of adjudication.