Kier Regional Limited (t/a Wallis) -v- City & General (Holborn) Limited
Case reference:
[2006] EWHC 848 (TCC)
Monday, 6 March 2006
Key terms: Adjudicator’s Decision - Enforcement - Consideration of Evidence
This was an application by a building contractor for summary judgment to enforce an adjudicator’s award. The building contractor Kier brought adjudication proceedings in relation to delays and problems, which had arisen during the course of the works, contracted between City & General and Kier.
Kier made a number of applications for loss and expense and there were five adjudications between the parties. The adjudication, which was the basis of this application centred on the decision of the adjudicator to disregard two expert reports submitted by City & General.
It was Kier’s position that the adjudicator should not consider the evidence, as it was new evidence. The adjudicator agreed with the submissions of Kier that the information contained in the expert reports was not before the Contract Administrator when he produced the valuation which was the subject of the adjudication. The adjudicator said the expert reports were therefore not relevant to the way in which the Contract Administrator prepared his valuation. However City & General took the view that the adjudicator’s comments and his subsequent decision were unlawful because the adjudicator did not consider all of the evidence placed before him. Accordingly City & General refused to make the payments ordered by the adjudicator.
Kier applied for summary judgment in respect of its claims and City & General filed its defence and pleaded that the adjudicator was wrong to refuse to consider the two expert reports submitted by City & General.
Justice Jackson considered whether or not the adjudicator’s refusal to consider the two expert reports caused his decision to be invalid. He considered the recent case law including the case of Carillion v Devonport Royal Dockyard [2005] EWCA (CIV) 1358.
This issue of new evidence was considered in Carillion and the Court of Appeal stated that if the adjudicator declined to consider evidence, which, on his analysis, was irrelevant, that was neither a breach of the rules of natural justice nor a failure to consider relevant material.
Justice Jackson said he did see considerable force in the contention that the adjudicator ought to have taken the two reports into account however he thought that the error made by the adjudicator was not one that would invalidate the decision. Justice Jackson went further and said that it was clear from the decision as a whole that the adjudicator had considered each of the arguments advanced by City & General and that at worst the adjudicator had made an error of law which caused him to disregard two pieces of relevant evidence. However, as the law stands this was not enough to invalidate the adjudicator’s decision and therefore it was enforced.
Kier made a number of applications for loss and expense and there were five adjudications between the parties. The adjudication, which was the basis of this application centred on the decision of the adjudicator to disregard two expert reports submitted by City & General.
It was Kier’s position that the adjudicator should not consider the evidence, as it was new evidence. The adjudicator agreed with the submissions of Kier that the information contained in the expert reports was not before the Contract Administrator when he produced the valuation which was the subject of the adjudication. The adjudicator said the expert reports were therefore not relevant to the way in which the Contract Administrator prepared his valuation. However City & General took the view that the adjudicator’s comments and his subsequent decision were unlawful because the adjudicator did not consider all of the evidence placed before him. Accordingly City & General refused to make the payments ordered by the adjudicator.
Kier applied for summary judgment in respect of its claims and City & General filed its defence and pleaded that the adjudicator was wrong to refuse to consider the two expert reports submitted by City & General.
Justice Jackson considered whether or not the adjudicator’s refusal to consider the two expert reports caused his decision to be invalid. He considered the recent case law including the case of Carillion v Devonport Royal Dockyard [2005] EWCA (CIV) 1358.
This issue of new evidence was considered in Carillion and the Court of Appeal stated that if the adjudicator declined to consider evidence, which, on his analysis, was irrelevant, that was neither a breach of the rules of natural justice nor a failure to consider relevant material.
Justice Jackson said he did see considerable force in the contention that the adjudicator ought to have taken the two reports into account however he thought that the error made by the adjudicator was not one that would invalidate the decision. Justice Jackson went further and said that it was clear from the decision as a whole that the adjudicator had considered each of the arguments advanced by City & General and that at worst the adjudicator had made an error of law which caused him to disregard two pieces of relevant evidence. However, as the law stands this was not enough to invalidate the adjudicator’s decision and therefore it was enforced.