Appointment of Adjudicator

Waterman got engaged to by LAP under a deed to be the engineering consultants in the construction of a shopping center in Milton Keynes.  In the process, a dispute arose, and the dispute was referred to adjudication as stipulated in the contract. A referral notice was served and 1000 supporting documents were provided. An adjudicator was appointed, and his fees would be calculated hourly. The contract was amended limiting the supporting documents to twenty. The adjudicator received only twenty pages. Waterman issued a response and LAP adduced evidence late in response. When the adjudicator asked for more time to make the decision, LAP refused, and the Adjudicator found the decision in favor of LAP. Waterman disputed this decision. He stated the grounds for non-compliance with the contract, at the time of referral, there was no dispute, and late evidence by LAP ambushed him (Pickavance 2016, p. 669).

His first ground was that appointment of the adjudicator was not done as per the contractual terms. Therefore, the adjudicator had no jurisdiction since the referral was not valid. According to the court, the fee proposal of the adjudicator was against section 25 which provided that an adjudicator is entitled to a reasonable amount, but there were no any suggestions to imply that an hourly rate was unreasonable. The hourly rate was just used to determine what the final rate would be (Uff 2005, p. 65-70 ). The court concluded that the adjudicator was also right in finding the referral notice excessive and that 20 pages would suffice. The court further stated that the referral was sufficient as long as long as all the issues were addressed. According to Ramsey (2017) regarding to the issue of no dispute; LAP had written to waterman and explained his claims and invited a response from Waterman. Waterman’s response was that he could not comment on the claims unless he had seen all the requisite documents. On further request for the documents by Waterman, and denial, the matter was taken to adjudication.

The court explained what a dispute is referring to the case of Halki Shipping Corp v Sopex Oils Limited. This includes a claim which the other party refuses to pay or admit leading to arbitration or adjudication. The court further stated that dispute was met in the liability element and not necessarily the quantum element. The court further stated that the referral met both the liability and quantum elements thus there was a dispute. His claim for breach of justice was admitted. This was because submission of new evidence by LAP was inappropriate. This is because LAP initially had the evidence but did not rely on it. The court advised that the adjudicator should have made a decision based on whether there were any grounds to allow the new evidence. The adjudicator disregarded the fact that Waterman may not have had sufficient time to respond to the new evidence. Admission of the new evidence meant that Waterman had no sufficient time to respond to the claims and making a decision based on new evidence would be a breach of natural justice. In the opinion of Andriase (2016) if natural justice cannot be reached an adjudicator should stop the process

Jurisdiction of Adjudicator

Waterman used the case of Anisminic, O’Reilly v Mackman, and ex parte to argue that the decision by an adjudicator can be reviewed. In this case, the plaintiffs started proceedings alleging that the decision by home office and board of visitors was biased hence should be declared as null and void. The plaintiff also claimed that the decision was against natural justice. The defendants wanted the proceedings to be struck out. The court reversed the decision and struck out the process stating that the only remedy was by judicial review, not the court process. When dismissing the appeals, the court also held that through judicial review, the plaintiff could get the remedies they sought and it would abuse the process if the plaintiff complains were admitted. This would be abuse because the plaintiff was complaining that the public authority was infringing their rights and that the redress being sought was just a declaration that the decision made by the board was void. Therefore the court observed that allowing the action to proceed will amount to the abuse of the process and this will lead to avoidance of the protection given to statutory tribunals. This case also shows that adjudicators need to follow the law when making their decisions. They should not make decisions based on their ideas as suggested by David (2016).

In cases where adjudicators decide by error, the decisions can be nullified, in Anisminic v Foreign Compensation Commission this was the finding. The decision was an error and misinterpretation on grounds for compensation. Ramsey (2007) asserts that the error in this situation led to the House of Lords stating that there was no determination at all. The issue of error was further discussed in Pearlman v Keepers and Governors of Harrow School. It was stated that error entails the absence of jurisdiction, and any tribunal was making such error on jurisdiction will be corrected by certiorari.

HHJ Wilcox in Waterman’s case was of the opinion that he could not interfere with adjudicators’ decision. He was bound by the case of Bouygues (UK) Limited v Dahl-Jensen. In this case, the plaintiff Appealed against the decision by the adjudicator claiming that he decided the case outside the terms of reference. This appeal was dismissed, and he court stated that the HGCRA was put in place so that parties would have a method to solve their disputes in a speedy manner. The court further stated that where an adjudicator has answered the wrong question, although, in the wrong way, the court cannot interfere with the award given by the adjudicator. In this case, the adjudicator excluded retention while calculating the sums. In effect, the sum was to be released to Dahl-Jensen who was not entitled to the sum under the contract. Hence the court held that the adjudicator only made a mistake on calculations, but he was within his jurisdiction. The decision was enforced because the decision awarded Dahl-Jensen the retention money rather not the release of the money as we see in Stockdale, Mitchell, Wilson, Spurgeon, Hewitson, & and Woodley (2010)

Referral Notice

Conclusions

The case of Amsterdam Properties v Waterman limits the adjudication as a dispute resolution process in that adjudicators are required to comply with the law. In Bouyges the court recognizes the place and importance of adjudicators in dispute resolution, and their decisions are binding as seen in Hughes, Champion, & Murdoch (2015, p.120). Bouyges shows that courts cannot interfere with the decision of adjudicators as they are statutory. Waterman’s case shows limits as appeals to the higher courts are limited and allowing such appeals lead to abuse of the court process. Allowing will also remove protection on statutory tribunals. In these cases we see that statutory tribunals are protected and even checks and balances ought to have a proper basis; we see this as the higher courts are reluctant to interfere or overturn adjudicator’s decisions. The courts only interfere with triable issues. In waterman’s case, there was a substantial breach of justice when evidence admitted did not give waterman sufficient time to respond Kondev (2017). This automatically leads to a breach of justice. Therefore, appealable issues are issues noncompliant with the general rules of justice and law. However, the adjudicators are required to comply with the law while making their decisions. The rules of evidence and admissibility apply when evidence ought to be admitted seen in Waterman’s case. The adjudicators are required to balance the interest of both parties and not disadvantage the other. The observation also made was that it was not a mistake for the adjudicator to deal with the issue. Where necessary and unlawful decisions are reached the courts can nullify as we see in the Anismic case. However, the breakthrough, in this case, was that tribunal and administrative authorities’ decisions ought to be respected. Appeals on the point of law should not overturn applying to facts unless the appeal falls on bounds of unreasonable judgment as stated in the case of Moyna v Work and Pensions Secretary.

References

Adriaanse, M.J., (2016). Construction contract law. Palgrave Macmillan

Baker, E., Mellors, B., Chalmers, S. and Lavers, A., (2013). FIDIC contracts: Law and practice. CRC Press.

David Chappell, B.A., (2016). Understanding JCT Standard Building Contracts

Hughes, W., Champion, R. and Murdoch, J., 2015. Construction contracts: law and management. Routledge.

Kondev, D., (2017). Multi-party and Multi-contract Arbitration in the Construction Industry.

John Wiley & Sons.

Mann, P and Wong, D T W (2016). Construction Adjudication: The Way Forward, The

Construction, Building and Real Estate Research Conference of the Royal Institution of Chartered Surveyors, Toronto Canada, September 2016 (ISBN: 978-1-78321-160-9) 

Pickavance, J., (2015). A practical guide to construction adjudication. John Wand Management Law for Students. Routledge.

Uff, J., (2005). Construction law (pp. 63-76). London: Sweet & Maxwell. iley & Sons.

Ramsey, V., (2007). Construction law handbook. Thomas Telford.

Stockdale, M., Mitchell, R., Wilson, S., Spurgeon, S., Hewitson, R. and Woodley, M., (2010). Galbraith’s Building and L