Adjudication: 'Ambush Tactics' And Natural Justice

Two recent TCC decisions suggest that it will be difficult

to establish that "ambush adjudication" is procedurally

unsound on the grounds of breach of the rules of natural

justice.

First Case

The Dorchester Hotel employed Vivid to carry out the

refurbishment of its hotel. A dispute between the parties

concerning the final account was referred to adjudication by Vivid

on 19 December 2008. The Referral Notice was 92 pages long and

incorporated 37 lever arch files. Amongst the 37 files there was

material that was entirely new and many of the figures in the final

account had been changed from previous submissions.

Vivid had allowed only modest extensions to the adjudication

timetable.

A few days into the adjudication, the Dorchester applied to the

court for declarations to the effect that unless a more realistic

timetable was agreed, there was a "very real risk" of a

breach of natural justice because the Dorchester would not have a

reasonable and fair opportunity to review the referral and

formulate its response and consequently the adjudicator would be

unable to carry out "his duty of deciding the case impartially

and fairly".

In considering the issues Coulson J confirmed that the court

does have the power to intervene in an adjudication, albeit that

power will be exercised sparingly. He criticised the timing and the

manner in which Vivid had brought the adjudication, which he

regarded as an exploitation of the adjudication process.

Nevertheless, he refused to grant declarations in this case and in

doing so he made the following points:

The rules of natural justice do apply to adjudication, but in a

limited way. Adjudication is an inherently rough and ready process.

The courts will therefore treat with scepticism arguments based on

supposed breach of natural justice. This is especially true in

circumstances where the supposed breach of natural justice has not

yet occurred and may never happen

Generally speaking, it will be for an adjudicator to decide

whether or not he has enough time to conduct an adjudication

fairly. The Judge was much influenced in this case by the fact that

the adjudicator had said clearly that he could fairly determine the

adjudication in the timetable allowed

It could not be said at such an early stage that the short

timetable was incapable of giving rise to a fair result.

Furthermore, arguments based on breach of the rules of natural

justice could be raised and dealt with at the enforcement

stage

Second Case

Akenhead J...