Avison resisted an application for summary enforcement of an adjudicator’s decision which awarded just under £9 million. Amongst the arguments put forward by Avison were that the adjudicator had failed to give adequate reasons for the decision and that, in a material breach of natural justice, the adjudicator had taken account of documents produced by Gardiner & Theobald (the “G&T Assessment”) without giving the parties an opportunity to address them.
Eyre J noted that a failure by an adjudicator to give adequate reasons for his or her decision can indicate that the adjudicator failed to decide the dispute which had been referred to them (and so had made a decision outside the adjudicator’s jurisdiction). It can also be an indication that the adjudicator failed to comply with the rules of natural justice.
The judge continued that reasons for an adjudicator’s decision can be expressed briefly and are to be seen in the context both of the adjudication procedure generally and of the particular adjudication. It is sufficient if the reasons provided enable the parties to understand what it is the adjudicator has decided and why. The reasons are also addressed to parties who know the issues and whose submissions will have formed the background to the decision:
“The question of whether adequate reasons have been given is to be answered by reading the relevant decision as a whole. An adjudicator is not obliged to give reasons for reasons.”
Further, the reasons in question should relate to the adjudicator’s decision on the dispute referred. The adjudicator is not required to address all the arguments advanced on a given issue although a failure to address particular arguments can indicate that the referred dispute has not been addressed or that there has been an unfair failure to consider a party’s case properly.
Interestingly, the judge added that a party which can say in detail how an adjudicator erred will find it hard to show that the reasons given did not enable that party to understand what the adjudicator had decided and why. Here, the judge felt that Avison’s arguments neither took into account the context of the passages relied on nor considered the decision as a whole.
For example, the suggestion that a conclusion expressed by the adjudicator was a “bare statement” which had no reasons behind it was incorrect because that conclusion was: “avowedly the culmination and summation of the preceding analysis”. In the preceding parts, the adjudicator had set out the parties’ cases and identified which contentions he had accepted and which he had rejected, and had given brief reasons for doing so.
The reasons given were sufficient to enable the parties to know what had been decided and why in respect of the dispute referred and this line of defence fails.
As for the use of the G&T Assessment, this, the judge noted that the figures in the G&T Assessment fell between those advanced by the parties’ experts. Therefore, by using the G&T Assessment the adjudicator arrived at a higher figure for the over-certification than was accepted by Avison but a lower one than that put forward by C&W. However, it was not the case that in acting in this way the adjudicator was deciding the matter on a basis which had not been put forward by either side and doing so without the parties having been given an adequate opportunity to address the point. In fact, when the exchanges between the adjudicator and the parties’ representatives were considered, it is apparent that, although the adjudicator did proceed on a basis which was not advanced by either party (and the judge was one which both parties disavowed), the adjudicator had given a clear forewarning that he was minded to do so and had invited and received submissions from the parties on the issue. The adjudicator also suggested a meeting to consider the issue, which the parties did not take up. The judge noted that an adjudicator:
“is not bound by the contentions of the parties and can reach a conclusion for which neither party has contended provided the parties have had a fair opportunity to address the matters which the adjudicator was considering taking into account. That was done here.”