UK: Adjudication: "Ambush Tactics" And Natural Justice

Last Updated: 12 February 2009
Article by Caroline Cummins and Liam Hart

Two recent TCC decisions suggest that it will be difficult to establish that "ambush adjudication" is procedurally unsound on the grounds of breach of the rules of natural justice.

First Case

The Dorchester Hotel employed Vivid to carry out the refurbishment of its hotel. A dispute between the parties concerning the final account was referred to adjudication by Vivid on 19 December 2008. The Referral Notice was 92 pages long and incorporated 37 lever arch files. Amongst the 37 files there was material that was entirely new and many of the figures in the final account had been changed from previous submissions.

Vivid had allowed only modest extensions to the adjudication timetable.

A few days into the adjudication, the Dorchester applied to the court for declarations to the effect that unless a more realistic timetable was agreed, there was a "very real risk" of a breach of natural justice because the Dorchester would not have a reasonable and fair opportunity to review the referral and formulate its response and consequently the adjudicator would be unable to carry out "his duty of deciding the case impartially and fairly".

In considering the issues Coulson J confirmed that the court does have the power to intervene in an adjudication, albeit that power will be exercised sparingly. He criticised the timing and the manner in which Vivid had brought the adjudication, which he regarded as an exploitation of the adjudication process. Nevertheless, he refused to grant declarations in this case and in doing so he made the following points:

  • The rules of natural justice do apply to adjudication, but in a limited way. Adjudication is an inherently rough and ready process. The courts will therefore treat with scepticism arguments based on supposed breach of natural justice. This is especially true in circumstances where the supposed breach of natural justice has not yet occurred and may never happen
  • Generally speaking, it will be for an adjudicator to decide whether or not he has enough time to conduct an adjudication fairly. The Judge was much influenced in this case by the fact that the adjudicator had said clearly that he could fairly determine the adjudication in the timetable allowed
  • It could not be said at such an early stage that the short timetable was incapable of giving rise to a fair result. Furthermore, arguments based on breach of the rules of natural justice could be raised and dealt with at the enforcement stage

Second Case

Akenhead J took a similarly robust approach to arguments alleging breach of the rules of natural justice in the recent Bovis Lend Lease case.

There, the defendant employer sought to resist summary judgment of an adjudicator's decision, in part on the basis that there was too much material to be properly considered by the defendant in the time available.

In rejecting this argument Akenhead J put particular emphasis on the failure of the employer to raise the point at any time during the adjudication. The lesson learned from this is that if one intends to resist enforcement on the grounds of breach of the rules of natural justice, one should at least raise the issue during the adjudication.

Implications

The upshot of these two cases is that (generally speaking) arguments based on natural justice are unlikely to fare well in cases where a respondent claims to have been "ambushed" or swamped with material. In both cases the court reasserted that although there had been adjudication "by ambush" this did not necessarily result in a breach of natural justice. The HGCR Act 1996 provides for adjudication "at any time" and sets out a timetable that in complex cases will almost inevitably lead to a "rough and ready" decision by the adjudicator.

Nonetheless, it was also implicit in the court's reasoning that there may be circumstances where the sheer volume of material adduced in support of a Referral Notice is such that a decision cannot be reached fairly and effectively in the adjudication timetable. Exactly how much is "too much" is not discussed by the court, yet it is clear that in considering whether there had been "too much" material, judges will be particularly influenced by two things:

  • Firstly, did the adjudicator believe that there was "too much" material and
  • Secondly, was breach of natural justice an issue raised by the respondent during the adjudication

Perversely, the court's findings may lead to the spectacle of adjudicators playing down the time pressures which they are under (for fear that their protestations will be used as a defence to the enforcement of their decisions) whilst at the same time respondents will be shouting ever more loudly during adjudications that they need more time. Pending further clarification of this issue it may be that the merest whisper by an adjudicator that he has had sufficient time will drown out the anguished cries of respondents that there is "too much" to consider.

References:The Dorchester Hotel Ltd v Vivid Interiors Ltd and Bovis Lend Lease Ltd v The Trustees of the London Clinic.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 11/02/2009.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.