Who've you been seeing?

Tony Bingham has already written about His Honour Judge Seymour's recent decision in Dean & Dyball Construction Limited vs Kenneth Grubb Associates Limited (28 November, page 55). That article focused on Kenneth Grubb's challenge to the adjudicator's decision based on Edmund Nuttall vs RG Carter – that is, the extent to which a party can alter its case once proceedings have begun. However, the other grounds Grubb relied on were at least as old a chestnut as the Nuttall vs Carter point.

There have now been about 20 cases in which the Technology and Construction Court has considered the extent to which the rules of natural justice apply to adjudication. Early decisions appeared to acknowledge that the practical constraints of the process were incompatible with the full application of natural justice rules, at least as far as the right of the parties to be heard was concerned. However, in recent decisions, the courts have shown a reluctance to continue down this road.

One consequence of this has been that some parties that are disappointed with an adjudication result have sought to find an aspect of the adjudicator's conduct on which to base a challenge to their decision. This, not surprisingly, has made adjudicators more cautious about their conduct. Some are now approaching adjudication as if it were arbitration.

Judge Seymour's decision on this aspect of the case is therefore to be welcomed, as it addresses head-on two central aspects of the natural justice debate. First, is it safe and appropriate for an adjudicator to meet a party and/or its expert separately to gather information? Second, is an adjudicator bound, particularly where a party requests it, to hold a hearing with cross-examination to gather evidence?

In the Dean & Dyball case, the adjudicator met the parties and their experts separately on a number of occasions. Indeed, the agreement between the parties incorporated the Construction Industry Council's model adjudication procedures, which expressly gives the adjudicator the power to do so.

Judge Seymour’s decision addresses head-on two central aspects of the natural justice debate

It should also be noted that, following each meeting, the adjudicator prepared a summary of the discussion that he sent to the party that had attended to check that it was an accurate report of what had occurred. He then sent that summary to the other party.

Grubb submitted that it made no difference if the procedure the adjudicator had adopted had been agreed. The real point, he said, was that the absent party could never be certain it had been made aware of all relevant aspects of the meeting. For instance, the adjudicator's body language could be as significant as what they said. Therefore, the very nature of the procedure meant that it could operate unfairly and that ought to be enough to invalidate it.

The judge expressed little sympathy for what he called an "unpromising proposition". He said the "common thread" running through previous decisions was that wherever an adjudicator was told something in the absence of the other side he must communicate the substance to the absent party. If he did that he satisfied the requirements of natural justice.