“53. … Whilst that case is, obviously, not authority for the proposition that a “good” challenge to a decision on jurisdiction or natural justice grounds will be excluded on some statistical basis, a challenge on these grounds must be plain, clear and relatively comprehensible. In a case such as the present, the Adjudicator, albeit experienced, had a mass of conflicting evidence and argument to take on board. The Court should not take an over-analytical approach to questions of jurisdiction and natural justice arising in adjudications under the HGCRA 1996.”
“28. Is the adjudicator obliged to inform the parties of the information that he obtains from his own knowledge and experience or from other sources and of the conclusions which he might reach, taking those sources into account? In my judgment it is now clear that, in principle, the answer may be: Yes. Whether the answer is in the affirmative will depend on the circumstances. The reason lies, at least in part, in the requirement that the adjudicator should act impartially …. 29. Nevertheless, in my judgment, that which is applicable in arbitration is basically applicable in adjudication but, in determining whether a part has been treated fairly or in determining whether an adjudicator has acted impartially, it is very necessary to bear in mind that the point or issue which is to be brought to the attention of the parties must be one …. which is either decisive or of considerable importance to the outcome and not peripheral or irrelevant….”
“Because in the Balfour Beatty case the adjudicator did not inform the parties of his methodology and seek their observations on its suitability and because if the losing party had had the opportunity to comment it might well have made a difference, he refused to enforce the decision. 57. From this and other cases, I conclude as follows in relation to breaches of natural justice in adjudication cases: (a) It must first be established that the adjudicator failed to apply the rules of natural justice; (b) Any breach of the rules must be more than peripheral; they must be material breaches; (c) Breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is nor peripheral or irrelevant. (d) Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which must be assessed by the judge in a case such as this. (e) It is only if the adjudicator goes off on a frolic of this own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd. v The London Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation thereto.” (a) It must first be established that the adjudicator failed to apply the rules of natural justice; (b) Any breach of the rules must be more than peripheral; they must be material breaches; (c) Breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is nor peripheral or irrelevant. (d) Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which must be assessed by the judge in a case such as this. (e) It is only if the adjudicator goes off on a frolic of this own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd. v The London Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation thereto.”
“To correct this I have made a number of additions to the RGB logic by adding the deficient successor links which I have listed in detail in Appendix 4 in addition to showing the additional links, on the programmes, in blue for absolute transparency …”
“The impact of the Employer’s late design to enable RGB to make a meaningful start to the lower floors is a further delay of 12 weeks, resulting in the total forecasted delay of 57. weeks 1 day and a revised forecasted completion of20th June 2017 .”
“i. Delay due to Relevant Event 1 was 93 days; ii. No delay accrued due to Relevant Event 2; iii. 55 calendar days of delay accrued due to Relevant Event 3; iv. Delay due to Relevant Event 4 was 26 calendar days.”
“Turner report impacted each delay events (sic) directly in to the baseline programme without taking on board the actual progress achieved on site at relevant times and any potential changes in the planned intent. Omitting the achieved progress and other significant events that may have impacted the programme also means that any potential changes in the project’s evolving critical path cannot be identified and considered.”
“… introduced in to the preadjusted baseline programme (including RE1 and RE 2 impacts) by linking the planned start of fit out to lower basement, basement and ground levels to the milestone date of14 February 2017 (issue of reflected ceiling plans).”
“….. a number of queries arise on the delay reports, as set out in the attached schedule, to which I would appreciate answers. …. Albeit reference is made in the attachment to individual programmes, I would appreciate soft copies of all the programmes in Power Project created and for (sic) relied on in the Response.”
“Regarding the schedule of additional successor logic, please explain in each instance why a particular successor activity has been selected and why the particular type of logic link with lag (when included) is appropriate.” “Other than closing “open ends”, does Appendix 4 include logic changes to prevent start/ finish dates changing when rescheduling; if so, what changes have been made in this respect.” (ii) The adjudicator requested copies of the programme impacted with relevant events 2, 3 and 4 in native software. (iii) In relation to paragraphs of Mr Sekulic’s report in which he said that he did not have the Asta Power Project programmes in native format, the adjudicator asked for them, that request being directed in the relevant column to RGB. (iv) In relation to paragraph 4.1.3 of Mr Sekulic’s second report quoted above, he asked: “What was the state of progress/project delay at the point in time the Turner report identifies each of the 4 events started to impact on progress; identify other causative issue of delay other than the four events relied on in the Turner Report.” (v)In relation to paragraph 4.1.5, he asked: “What is the basis for the assertion that the baseline used in the Turner report should be considered meaningless in that it was prepared after the fact.” (vi)In relation to paragraph 4.1.6, he asked: “What alternative method of analysis should have been used if not the “Impacted As-Planned”
“From RGB’s perspective, my view is that any method that applies as-built information and is grounded in fact would be likely to produce stronger demonstration of potential entitlement.”
“It is important to bear in mind that I did not carry out a delay analysis, but I evaluated the claims for time extension provided by RGB at various times. I did this primarily by putting the claims made in their proper programming, factual and logical context given the available information.”
“5.39 The cause identified by Ms Turner at paragraph 6.3.3 of her4 April 2018 report (and the associated charts) is the absence of the reflected ceiling plans, which were not issued until14 February 2017 , and thus prevented works at Sub-Basement level from progressing. I have difficulty in accepting this …… It seems, and I conclude, that Ms Turner has mistakenly linked delivery of the Ground Floor RCP to the Sub-Basement M&E Installation rather than the Ground Floor, which work was planned to start two weeks later. 5.40….. Ms Turner has not satisfactorily demonstrated that Commissioning would not have been able to start until all M&E works at ground floor level had been completed, and irrespective of progress made to works on other floors or parts of the building. I do accept it as obvious, however, that commissioning could not be completed until the relevant M&E works were completed and that a link should be introduced which reflects that constraint. By way of reference point, I note that RGB had applied a “Finish-Finish +15 day lag” relationship between the completion of the 6th floor corridor fit out and commissioning; in my view this would be an appropriate relationship to use instead.”
“5.44 That is because whilst both delays to progress to sanitary ware installation due to late procurement (Ms Turner’s Relevant Event No. 2) and M&E installations at Ground Floor due to lack of design information (Ms Turner’s Relevant Event No. 3) started to accrue from the planned start dates of these works on 25 January and28 January 2016 respectively, Ms. Turner’s Relevant Event No. 3 was (once the error in logic linking noted at 5.39 above is corrected) at all times the critical delaying event (containing the least float). Thus, even if RGB were to fail on Mr Turner’s Relevant Event No. 2 ….. RGB succeeds on Ms Turner’s Relevant Event No. 3.”
“(a) The four sub-contractor claims all come as letters of one or two pages that are suspiciously similar; (b) None of the sub-contractor claims provide any evidence that the subcontractor has actually incurred any of the costs claimed; (c) No evidence has been submitted verifying that the costs claimed have been paid by RGB; (d) None of the costs claimed have been sufficiently explained; (e) All of the sub-contractor claims have applied exactly the same use of the Emden formula. No proof of alternative work has been provided in support. The Emden formula requires the original subcontract value to be input into the formula. However, the subcontract sum values used not reflect what is contained in the supporting information. RGB’s subcontractors have incorrectly input their adjusted subcontract value, inclusive of variations. The claims submitted are in consequence greatly inflated due to double claiming for variations works. RGB has responded that it has paid its subcontractors significant percentages of the sums due (usually around 70%), with any sums not paid identified as sums remaining owed to the sub-contractors, and attaches the invoices and proofs of payment …. The exception is the JEM Group Limited, which fell into liquidation six months after Practical Completion. JEM’s liquidator has reserved his/ the company’s right to claim against RGB, as RGB has not paid JEM Group Limited (RGB says that it was unable to do so before JEM went into liquidation). RGB contends that it has paid the sums for individual subcontractors’ loss and expense that it sets out in the Scott Schedule ….. I note that that is obviously not so, on its own admission, in respect of JEM Group Limited.”
“Dr Mastrandrea did not deal with the argument or even refer to it at all. This too amounts to a breach of natural justice.”
“22.1 The adjudicator must attempt to answer the question referred to him. The question may consist of a number of separate sub-issues. If the adjudicator has endeavoured generally to address those issues in order to answer the question, then, whether right or wrong, his decision is enforceable … 22.2 If the adjudicator fails to address the question referred to him because he has taken an erroneously restrictive view of his jurisdiction (and has, for example, failed even to consider the defence to the claim or some fundamental element of it), then that may make his decision unenforceable, either on grounds of jurisdiction or natural justice …. 22.3 However, for that result to obtain, the adjudicator’s failure must be deliberate. If there has simply been an inadvertent failure to consider one of a number of issues embraced by the single dispute that the adjudicator has to decide, then such failure will not ordinarily render the decision unenforceable … 22.4 It goes without saying that any such failure must also be material …. In other words the error must be shown to have had a potentially significant effect on the overall result of the adjudication … 22.5 A factor which may be relevant to the court’s consideration of this topic un any given case is whether or not the claiming party has brought about the adjudicator’s error by a misguided attempt to take a tactical advantage.”
“Dawnus Construction Holdings Ltd. v Marsh Life Ltd. [[2017] EWHC 1066 (TCC) ] is a clear example of the court’s approach: the judge will not put a fine tooth comb through the adjudicator’s decision, seeking to ensure that every single point has somehow been addressed. The court’s approach is broad-based, looking first at the dispute referred, and then second as to what the result was. It is not a breach of the rule of natural justice if one particular sub-issue is not specifically referred to in the adjudicator’s decision.”
“25. Ms Rawley for the Contractor in this case also argued that it was open to the court to infer from what was put before the Adjudicator and what was said or not said in the adjudicator’s decision that the adjudicator had not considered or addressed the defence properly put forward by the defending party. I agree that the Court can so infer; indeed, it may be a rare case …. that the adjudicator will admit that he or she has not considered a proper defence. Accordingly, where the breach of natural justice is the failure to consider defences properly put forward, the court will often have to infer whether there has been such a failure.”
“26 In the context of this case, I draw the following conclusions: (a) The Adjudicator must consider defences properly put forward by a defending party in adjudication. (b) However, it is within an adjudicator’s jurisdiction to decide what evidence is admissible and, indeed, what evidence is helpful and unhelpful in the determination of the dispute or disputes referred to that adjudicator. If, within jurisdiction, the adjudicator decided that certain evidence is inadmissible, that will rarely (if ever) amount to a breach of natural justice. The position is analogous to a court case in which the Court decides that certain evidence is either inadmissible or of such little weight and value that it can effectively be ignored: it would be difficult for a challenge to such a decision on fairness grounds to be mounted. (c) Even if the adjudicator’s decision (within jurisdiction) to disregard evidence as inadmissible or of little or no weight was wrong in fact or in law, that decision is not in consequence impugnable as a breach of the rules of natural justice. (d) One will need in most and possibly all “natural justice” cases to distinguish between a failure by an adjudicator in the decision to consider and address a substantive (factual or legal) defence and an actual or apparent failure or omission to address all aspects of the evidence which go to support that defence. It is necessary to bear in mind that adjudication involves, usually the exchange of evidence and argument over a short period of time and the production of a decision within a short time span thereafter. It is simply not practicable, usually, for every aspect of the evidence to be meticulously considered, weighed up and rejected or accepted in whole or in part. Primarily, the adjudicator, needs to address the substantive issue, whether factual or legal, but does not need (as a matter of fairness) to address each and every aspect of the evidence. The adjudicator should not be considered to be in breach of the rules of natural justice if the decision does not address each aspect of the evidence adduced by the parties.”
“Victory House does not deal with subcontractor claims individually, but due to the incredible similarity between them, it makes brief general comments on their inadequacy as follows.” (ii) The statement of Mr Kemp, of Victory House’s solicitors, made on this application deals with the circumstances in which Mr Johnson came to give evidence in the adjudication about how his company’s claim came to be made with assistance from RGB. Mr Kemp says that he has never before encountered a main contractor assisting a sub-contractor to make a claim and that that was “in fact suspicious” and suggested that the claim was “manufactured”, to increase RGB’s claim, as Victory House had said in the Referral. He further suggested that it was highly unlikely that RGB would have assisted if the claims were genuine. (iii) In its Reply, Victory House made submissions on the individual claims prefaced by comments that applied to all four sub-contractors. Paragraph 108 read as follows: “a. RGB has not shown: i. in what way the sub-contractors were delayed, or ii. by how much, or iii. how the period of delay claimed is due to a Victory house relevant Matter. i. in what way the sub-contractors were delayed, or ii. by how much, or iii. how the period of delay claimed is due to a Victory house relevant Matter. b. From the similarity between the claims, it seems that the sub-contractor claims have been produced with assistance and collusion and are not genuine and independent claims for additional delay costs. c. That RGB now supplied payment certificates does not mean that any loss incurred by the sub-contractors is a Relevant Matter under Victory House’s Contract with RGB. It is likely that any delay event is due to RGB’s action or inaction, and so Victory House would have no liability for the delay or any resultant cost. No evidence has been supplied on that point. d. None of the payment certificates provided with the Response are signed, which sheds doubt on their veracity.” (iv) It is clear that sub-paragraphs (a) and (c) went to matters of the substance or merits of the claims. The reference in sub-paragraph (d) to the “veracity” of the payment certificates might be thought to go somewhat further but there was no suggestion that they were fabricated rather than there was no evidence of payment.
“5.87 Notwithstanding the foregoing, it is clearly inappropriate in my decision to value this item at nil. I am satisfied from even the material put before me that JEM Group Limited would, in carrying out the electrical work with which it was charged, have suffered substantial delays by reason of the matters found by me to entitle RGB to an extension of time. These matters account for 430 calendar days’ delay out of a total overrun of 473 calendar days. A number of the costs claimed in the letter appear appropriately to be time-sensitive costs, albeit that the list was incomplete. 5.88 Having regard to the unsatisfactory material before me, I allow 20% of sum claimed ie.£87,336.88 against this sum.” (Emphasis added)
“Notwithstanding the foregoing, it is clearly inappropriate in my decision to value this item at nil. I am satisfied from even the material put before me that David James Contract Services Ltd. would, in carrying out the decoration works with which it was charged, have suffered substantial delays by reason of the matters found by me to entitle RGB to an extension of time. The matters falling within Relevant Event Nos. 3 and 4 which form the basis of the claim advanced by David James Contract Services Southern Ltd. account for 337 calendar days’ critical delay to the Works out of a total of 473 calendar days. A number of the costs claimed appear appropriate to be time-sensitive costs with some obvious exceptions, such as the disruption claim.”