Adjudicator’s frolic a breach of natural justice – BSW Building Services v Adur District Council [2018] 10 WLUK 486

Last week, Mr Roger Stewart QC sitting as Deputy Judge of the Technology and Construction Court (“TCC”) dismissed a claim for summary judgment against Adur District Council (“Adur”) to enforce an adjudicator’s award for £327,281.46.  Adur was represented by Ely Place’s Clifford Darton.

Accepting Adur’s arguments and applying the decision in Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC), the Judge held that the adjudicator had acted in breach of natural justice when he decided the adjudication on a point on which Adur had not been allowed to make submissions.

The Adjudicator had found that Adur was liable to pay the sum claimed on account of RPI increases notwithstanding that the parties’ contract did not, as a matter of construction, allow for such increases. In the Adjudicator’s view Adur had “waived” the relevant terms and also a Non-Oral Variation Clause which precluded such a waiver.  This view had not been advanced by the claimant  in the adjudication and was one to which Adur submitted there was a ready answer following the Supreme Court decision in  MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] 2 W.L.R. 1603.

In his extemporary judgment, Mr Roger Stewart QC found that that whilst the Adjudicator had been the sole determiner of the legal and factual issues that had been referred to him this extensive jurisdiction had not allowed him to go on what the Judge called a “frolic of his own” and act in breach of Natural Justice.

In an area of law in which summary judgment is almost always granted (see Bouygues (UK) Ltd v Dahl-Jensen UK Ltd [2000] EWCA Civ 507) this is the second application that Clifford Darton has defeated this year; he and Tom Kirk having appeared for the successful defendant in M Hart Construction v Ideal Response [2018] 177 Con. L.R. 228 in which the claim was for £1.2 million.  The decision was particularly pleasing for Clifford as he also acted for the successful appellant in MWB v Rock before the Supreme Court.

Clifford Darton was instructed by Ms Joanne Lee of Adur District Council.

6th November 2018