Kitt v The Laundry Building Ltd (TCC - 17.12.2014)
Functions of the notice of adjudication and whether the disregarding of evidence by the adjudicator can amount to a breach of the rules of natural justice
17 December, 2014
KITT v THE LAUNDRY BUILDING LTD
Technology and Construction Court
17th December 2014
Akenhead J stated in relation to the functions of the notice of adjudication that whilst it is generally a good rule of thumb, it is not always the case that the notice of adjudication defines the dispute or that the adjudicator takes his or her jurisdiction from its content. An example is the referral of something which is explained in the notice as being a dispute but has never been disputed beforehand. It is also necessary to look at the supposedly disputed claim set out in the notice in its context, which will usually involve a consideration of acts and communications between the parties over the preceding weeks if not months. An adjudicator has to consider and indeed adjudicate on defences put forward by a defending party in adjudication, even if a specific defence has not been raised before. The notice cannot circumscribe and delineate the dispute set out in or purportedly defined within it so as to exclude particular defences because it would be illogical and untenable, if not ludicrous, if this was the case.
Akenhead J stated in relation to whether the disregarding of evidence by the adjudicator can amount to a breach of the rules of natural justice that it is within an adjudicator's jurisdiction to decide what evidence is admissible and helpful or unhelpful in the determination of the dispute referred. If the adjudicator decides within his jurisdiction that certain evidence is inadmissible or of little or no weight, that will rarely (if ever) amount to a breach of the rules of natural justice even if that decision was wrong in fact or law. It is necessary in most and possibly in all cases to distinguish between a failure by an adjudicator in the decision to consider and address a substantive (factual or legal) defence and an actual or apparent failure or omission to address all aspects of the evidence which go to support that defence. It is simply not usually practicable for the adjudicator to meticulously consider, weigh up and reject or accept in whole or in part every aspect of the evidence when the adjudication process usually involves the exchange of evidence and argument and the production of a decision within a short time span.