Adjudication: The Case Of Dorchester vs Vivid Raised The Familiar Question Of When An Adjudication Breaches Natural Justice. Here Is What The Judge Had To Say....Fair Enough?

A feature of adjudication now sadly familiar to practitioners is

the way in which some referring parties apparently try to hamper

the respondent's ability to respond to the claim. With short

time limits in play some will choose the most inconvenient time to

launch an adjudication and serve vast quantities of documents -

behaviour which sometimes resembles ambush by steamroller.

In Dorchester Hotel Limited v Vivid Interiors Limited

(19.01.09) Mr Justice Coulson was faced with an adjudication in

which he clearly felt this was going on. Vivid had been engaged by

Dorchester to carry out refurbishment in its hotel. The final

account was in dispute. On 19th December, the Friday

before Christmas, Vivid commenced adjudication proceedings. The

Referral Notice, itself ninety two pages long, was accompanied by

thirty seven lever arch files which included six substantial

witness statements and two experts' reports of thirty and

twenty pages each. Whilst it appears that much of this extensive

material was not entirely new at least five files were and many of

the individual figures within the final account had been recast or

revised.

The adjudicator was only prepared to accept the reference if

Vivid agreed to disregard the holiday period from 24th

December to 4th January for the purpose of the twenty

eight days within which the adjudication had to be concluded. Vivid

agreed and in addition agreed a further extension to 28 February

with a timetable which required Dorchester to respond to the claim

by 28th January. However beyond that Vivid was not

prepared to go.

Dorchester said this timetable was too tight and claimed there

was a very real risk of there being a breach of natural justice.

Using Part 8 procedure under the Civil Procedure Rules it sought

declarations to that effect. Mr Justice Coulson said this raised

the novel question of the extent to which the court should

intervene in an ongoing adjudication in connection with potential

breaches of the rules of natural justice.

The judge clearly sympathised with Dorchester. He said that

Vivid had commenced the adjudication in the way it had in order to

obtain the greatest possible advantage from the summary

adjudication procedure. He added that it was a matter of regret

that the adjudication process, which was itself introduced as a

method of dispute resolution which would avoid unnecessary legal

disputes and procedural shenanigans, was now regularly exploited in

the same way. He also expressed...