In a sense, this recent case of BDP Construction Ltd vs Cygnet Behavioural Health Ltd [2026] is a dispute about whether the building was to be red or yellow; there was no room for the adjudicator to decide that it was to be purple. Bear with me; I will come back to all this shortly.

Now then, a key feature of adjudication is the right of the adjudicator to “take the initiative in ascertaining the facts and the law”. The snag is that this feature almost always gives the appearance of being an investigative process rather than the traditional adversarial process. 

When an adjudicator (or arbitrator, or judge) lifts some stones and asks some questions, it is no surprise if either one of the parties takes umbrage at this, sees it as helping the other party. Worse, though, is if the adjudicator says nothing when it is obvious from the papers submitted that there is a potential slam-dunk response which has been missed by one party. In other words, a real possibility of the wrong result can arise when an adjudicator keeps quiet and avoids investigating to avoid an upset at their doing. 

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