Try Construction Limited v Eton Town House Group Limited
Case reference:
[2003] EWHC 60 (TCC)
Tuesday, 28 January 2003
Key terms: Delay - extension of time - appointment of programming expert - reservation of position - natural justice
Try was the main contractor on a project to convert a former London bank into a luxury Hotel. The project fell into delay and Try commenced two consecutive adjudications against Eton, dealing with different EOT and L&E claims and the repayment of LADs. Try brought enforcement proceedings on the second adjudication decision.
Eton claimed that the appointment of a programming expert by the adjudicator was outside his powers and that Eton had not been given the opportunity to consider the methodology used by the adjudicator to determine the delay issue. Eton claimed that the issue on which the decision was based was not the one that had been referred, and that accordingly in breach of the rules of natural justice it had been denied the opportunity to make appropriate representations.
Following a trial of the factual issues relating to this case, which included the cross examination of witnesses, the Judge found that at a meeting with the adjudicator, the adjudicator had suggested and the parties had agreed to the appointment of a programming expert and had conferred extensive authority on him to analyse the EOT claim and if necessary the parties had given the expert the authority to "go beyond the strict confines of the arguments put forward by the parties".
Try argued that Eton's failure to raise any objection during the adjudication process, to question the adjudicator's final decision or to reserve its position with regard to the adjudicator's jurisdiction contemporaneously, meant Eton could not now contest the agreement to appoint the expert or the authority of the adjudicator to reach his decision based on the expert's findings.
HHJ Wilcox following Balfour Beatty v London Borough of Lambeth agreed. When considering natural justice, transparency is an important factor. In the Balfour Beatty case, there was deemed to be an apparent lack of fairness as the parties had not been given the opportunity to consider the adjudicator's approach in establishing whether there had been delay. Here both parties had agreed to the adjudicator appointing the expert and had agreed that the expert should have a degree of autonomy to decide his own methodology. The delay analysis (and thus the adjudicator's decision) was the consequence of that agreement.
Following a trial of the factual issues relating to this case, which included the cross examination of witnesses, the Judge found that at a meeting with the adjudicator, the adjudicator had suggested and the parties had agreed to the appointment of a programming expert and had conferred extensive authority on him to analyse the EOT claim and if necessary the parties had given the expert the authority to "go beyond the strict confines of the arguments put forward by the parties".
Try argued that Eton's failure to raise any objection during the adjudication process, to question the adjudicator's final decision or to reserve its position with regard to the adjudicator's jurisdiction contemporaneously, meant Eton could not now contest the agreement to appoint the expert or the authority of the adjudicator to reach his decision based on the expert's findings.
HHJ Wilcox following Balfour Beatty v London Borough of Lambeth agreed. When considering natural justice, transparency is an important factor. In the Balfour Beatty case, there was deemed to be an apparent lack of fairness as the parties had not been given the opportunity to consider the adjudicator's approach in establishing whether there had been delay. Here both parties had agreed to the adjudicator appointing the expert and had agreed that the expert should have a degree of autonomy to decide his own methodology. The delay analysis (and thus the adjudicator's decision) was the consequence of that agreement.