Natural justice is a fluid concept. As Lord Justice Ormrod said in Norwest Holst vs Department of Trade: “The ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case.” Therefore, depending on the context, natural justice may be rigorously applied or diluted to the point where the only requirement may be to act without bias. That requirement is embodied in the duty on the adjudicator to act impartially.
What about the right of the parties to have an opportunity of being heard and to deal with prejudicial material? I do not believe that the act takes these rights away by giving the adjudicator the power to act inquisitorially. The case of Rydon Homes Ltd vs Secretary of State for the Environment and Sevenoaks District Council (1995 70 P&CR 657) is helpful on this point. Rydon appealed a council decision to turn down its planning application for 16 homes. The appeal was heard informally by an inspector. He had the power to act inquisitorially, but the court held that he was obliged to apply natural justice.
Let us examine the example that Jennie has given. The adjudicator uncovers a vital piece of evidence on day 27. Jennie argues that it would be unfair if it were not used. My view is that natural justice would require that the adjudicator seek an extension from the referring party, or from both parties if both agree. If the party prejudiced by the new evidence was the referring party, it would, of course, be in its interest to give an extension. On the other hand, if the evidence were detrimental to the other party (and in the absence of an agreement to extend the adjudication), the adjudicator will need to consider the feasibility of a quick response from the other party or giving less weight to that evidence. The point is that the adjudicator must try these options.
Natural justice does not require the adjudicator to allow the parties the right to respond to every document. The constraints imposed by the legislation prevent that, and rightly so. It is sufficient that, within those constraints, adequate opportunity is given to the parties to present and rebut evidence.
Judge Dyson in Macob was not laying down a general principle that adjudicators could ignore natural justice. He was simply quashing the argument that a decision could be invalid at the outset. The legislature’s intention was that adjudicators’ decisions should be of immediate binding effect.
Like Jennie, I want adjudication to succeed, but this can only happen if everyone feels they have had a fair crack of the whip.
Rudi Klein is barrister and chief executive of the Specialist Engineering Contractors Group.