Rankilor (Dr Peter) & Perco Engineering Service Ltd v Igoe (M) Ltd
Case reference:
[2006] Adj LR 1/27
Friday, 27 January 2006
Key terms: Adjudication - Enforcement of adjudicator’s decision - Natural justice - Obviously unfair
This case related to two enforcement actions. The first was for recovery of half of the Adjudicator’s fees from the unsuccessful referring party (the successful party had paid its half of the fee) and the second action was to enforce the Adjudicator’s decision.
The dispute that was referred to the adjudication was in relation to the question of the amount of any fee which was due to Perco in relation to auger boring work which it had carried out as Igoe’s sub-contractor. The sub-contract had a fixed price and an agreed time for completing the work.
A dispute arose in relation to the payment to be received when Perco stated that it had encountered unforeseen ground conditions and therefore was entitled to be paid an additional sum. Igoe believe that Perco should have taken this into account when quoting for the work. Igoe stated that Perco was aware the ground was clay and as such was not entitled to any additional sum.
Igoe refused to comply with the Adjudicator’s decision on the grounds that the adjudicator reached his decision in breach of the rules of natural justice and therefore the decision was not binding upon the parties. Igoe’s complaint was that the Adjudicator reached the conclusion based on his own expert assessment of a laboratory analysis when such finding had not been contended for by either party and where Igoe had no opportunity to comment upon those findings.
It was Igoe’s contention that while the Adjudicator may have been entitled to use his own expert knowledge when assessing the evidence, Igoe should have the opportunity of producing evidence and/or making submissions in response.
HHJ Gilliland QC of the TCC held that while there could be no doubt that the conclusion reached by the Adjudicator was as a result of his consideration of the laboratory test samples, the Judge did not, in his view, believe that this was a predominant or main reason why the Adjudicator had reached the conclusion that he did.
HHJ Gilliland QC said that if the decision was to be challenged then there must be both a breach of the rules of natural justice and the Court must be shown that the breach was a serious breach. It must be shown that the Adjudicator has gone about his task in a way that it is obviously unfair.
The Judge held that Igoe had not established that a serious breach of the rules of natural justice had occurred or that the Adjudicator had acted in a way that was obviously unfair. It was the Judge’s decision that the Adjudicator was entitled to use his expert knowledge. The Judge found that while Igoe may have wished to have an opportunity to respond, this was not a case where there was any serious injustice or breach of the rules of natural justice as a result of the adjudicator considering the laboratory tests.
The dispute that was referred to the adjudication was in relation to the question of the amount of any fee which was due to Perco in relation to auger boring work which it had carried out as Igoe’s sub-contractor. The sub-contract had a fixed price and an agreed time for completing the work.
A dispute arose in relation to the payment to be received when Perco stated that it had encountered unforeseen ground conditions and therefore was entitled to be paid an additional sum. Igoe believe that Perco should have taken this into account when quoting for the work. Igoe stated that Perco was aware the ground was clay and as such was not entitled to any additional sum.
Igoe refused to comply with the Adjudicator’s decision on the grounds that the adjudicator reached his decision in breach of the rules of natural justice and therefore the decision was not binding upon the parties. Igoe’s complaint was that the Adjudicator reached the conclusion based on his own expert assessment of a laboratory analysis when such finding had not been contended for by either party and where Igoe had no opportunity to comment upon those findings.
It was Igoe’s contention that while the Adjudicator may have been entitled to use his own expert knowledge when assessing the evidence, Igoe should have the opportunity of producing evidence and/or making submissions in response.
HHJ Gilliland QC of the TCC held that while there could be no doubt that the conclusion reached by the Adjudicator was as a result of his consideration of the laboratory test samples, the Judge did not, in his view, believe that this was a predominant or main reason why the Adjudicator had reached the conclusion that he did.
HHJ Gilliland QC said that if the decision was to be challenged then there must be both a breach of the rules of natural justice and the Court must be shown that the breach was a serious breach. It must be shown that the Adjudicator has gone about his task in a way that it is obviously unfair.
The Judge held that Igoe had not established that a serious breach of the rules of natural justice had occurred or that the Adjudicator had acted in a way that was obviously unfair. It was the Judge’s decision that the Adjudicator was entitled to use his expert knowledge. The Judge found that while Igoe may have wished to have an opportunity to respond, this was not a case where there was any serious injustice or breach of the rules of natural justice as a result of the adjudicator considering the laboratory tests.