The adjudication meeting was action-packed and one party swears it never heard an argument presented by the other. Can the decision still stand?
A Scottish adjudicator has been hit by flak. It was fired at him by the judge in Ardmore Construction Ltd vs Taylor Woodrow Construction. The poor chap was even hauled into the witness box by subpoena for a day of cross-examination about his decision. Then it was set aside. The judge wasn't buying. The adjudicator was fed up.
Ardmore's subcontract was for groundworks at Glasgow harbour. Taylor Woodrow was the main contractor. The dispute was over money for this, money for that. The adjudicator decided the quarrels and declared that Taywood should pay up certain sums.
The contractor baulked at a number of points. One was in respect of an overtime award; Ardmore had said in its referral to adjudication that it had obeyed a Taywood letter sent in July. In other words Ardmore pleaded its case on the effect of the letter. Taywood argued against the effect of that letter. Ordinary adjudication, methinks.
Then the adjudication grew arms and legs. Taywood ran the new argument that, in any case, no day-work records were signed. Ardmore replied that Taywood had in any case paid about half.
Next, the adjudicator called a meeting. There were lots of things to clarify. He even sent a list of questions. The judge called it a hearing. At the meeting there was a long line of folk sat on the left and similar line on the right, with the adjudicator at the head. New bumf was tabled and Taywood cried foul.
Bear in mind that an outsider, such as a judge, would regard the period leading up to the meeting/hearing/trial as the time when battle was joined, er, pleaded. The agenda for trial is by now on the table. True, the agenda is often changed in the hearing but there will be an application to amend the previously pleaded position. The meeting/hearing/trial is to clarify the meaning of materials already in the agenda.
This Glasgow adjudication meeting wasn't anywhere near a hearing. They never are, believe me. They are more like a belter of a site meeting on a Monday morning where everyone has his say. The judge plainly disapproved of this sort of meeting: "It took the form of an open-ended discussion rather than anything that remotely represented a court or arbitration hearing." He thought it was uncontrolled, with no structure. In other words, the judge had grown up with formal due process.
The judge has realised that having a meeting that that rattles around the the topics is fraught with dangers. The industry, though, likes free-for-alls
The upshot of all this is that the adjudicator thought he heard Ardmore run a brand new argument. He thought he heard that Taywood had verbally instructed Ardmore to continue working weekends, or that it had acquiesced and agreed overtime in areas not mentioned in the July letter. More arms and legs.
When the adjudicator's decision landed, he awarded the overtime cash to Ardmore because of those arms and legs grown at the meeting. He had heard Ardmore argue for all this new stuff. Taywood gave evidence to the judge that no such argument had been run. The adjudicator and Ardmore's solicitor were convinced the solicitor had run them. True, the Taywood team had not made any reply to the assertion at the meeting. Presumably, that's why the adjudicator found Ardmore's position convincing.
I bet anything you like that Ardmore totally believes it did run those arguments and I bet the adjudicator totally believes it heard them, and that Taywood heard them, too. The judge has realised that having a meeting that rattles around the topics is fraught with dangers. The industry, though, likes those sorts of free for alls. The truth is, Taywood didn't hear. Probable? Yes. Unfortunate? Definitely.
That said, no decision can be enforced that is not founded on a fundamental principle: that no man shall be deprived of notice of the case against him and have time and opportunity to investigate and answer it. In the tight timescale of adjudication, new stuff is ever so dangerous.
So it was here. It would have been grossly unfair on Taywood to let in and base the award on that new stuff when it had no real chance to know of it, never mind answer it.
Tony Bingham is a barrister and arbitrator specialising in construction. You can email him on firstname.lastname@example.org.