“CFL submits that at an early stage in the conduct of the Adjudication, the Adjudicator made a determination about the strength of CFL’s case in his ruling on an application for disclosure that would lead a fair-minded and informed observer to conclude that there was a real possibility that he had pre-determined the case, and hence that he was biased.”
“Given that, as Essential says, Mr Mastrandrea’s Decision, thus the submissions and expert reports in his Adjudication, predates the first appearance of the defect, detaching buff coloured brick slips at the corners of columns, by several months, and Elements and Conneely’s work packages were different, I am not persuaded that any payments made to Essential pursuant to that Decision would have concerned the defects at issue in this Adjudication. The suggestion of double recovery is fanciful, thus provides no basis for disclosing Mr Mastrandrea’s Decision, expert reports served in this Adjudication or ‘all other submissions (including but not limited to the Referral, Response and Reply’, the later request being, in any case, too vague to be justified. Neither am I persuaded that the documents sought by Conneely should be disclosed because relevant to DBC’s assertions about possible causes of the detaching brick slips at issue in this Adjudication. The balconies are located in areas of green glazed slip tiles, albeit as shown in Appendix B1 of Mr Hubbard’s Report, in certain areas, they abut the brick slip clad columns, at issue in this Adjudication, although not the corners from which brick slips have dislodged. Since, as apparently noted in the DBC report, Conneely was involved in removing/replacing brick slips as part of the balcony remedial works, had it considered that the balcony works, or the matters, such as water ingress, that DCB highlights, could have affected the buff coloured brick slips, it would have been aware of these at the time or whilst Conneely was working on site and, if so, Conneely should be in a position to give witness evidence about this in this Adjudication, more so since these possibilities appear to have been raised with DCB. The mechanisms by which such factual matters could cause corner buff coloured brick slips to become dislodged from columns would not have been considered in Mr Mastrandrea’s Decision or in the expert reports or submissions provided to him, since this had not yet occurred; thus his Decision and those reports are irrelevant in the Adjudication. These are matters for Conneely’s experts to address by Response to Referral in this Adjudication, if so advised. If, in doing so, Conneely considers that there is specific factual evidence relevant to those expert matters that only Essential has access to, it should identify this, with an explanation of why it is relevant to those matters, by response to Referral. Essential can then address this in its Reply and, if necessary, I can do so in the LoI.”
“77. In my letter of the20th February 2024 , I started in the context of submissions on its request for disclosure that ‘The suggestion of double recovery is fanciful’, a statement that concerned quantum, not liability, thus did not concern any of the matters, such as defects and delays caused by other parties, in in particular, by Elements, which DBC says materially contributed to the manifestation of defects in the brick slip cladding sometime safter practical completion. Contrary to what Essential suggests in its submissions I did not express any concluded views about such contentions or, contrary to what Conneely suggests in paragraph 24 of its note of the22nd March 2024 , about causation, and in particular whether there was evidence that Elements’ works caused the Defects in the Corium Cladding. Rather, I stated that these were ‘matters for Conneely’s experts to address by Response to Referral in this Adjudication, if so advised. 78. As for my comment, in respect of quantum that ‘The suggestion of double recovery is fanciful’, since expressed by procedural ruling in the context of Conneely’s disclosure application, not in my Decision or in any final decision as to the substantive issues in dispute, I am able and, of course, willing not re-consider it in the light of evidence adduced by Conneely. To that end, Conneely should: 78.1 Identify where evidence of double recovery in respect of the sums awarded to Essential by Mr Mastandrea in 2019 due to defects in Element’s work at issue in Essential v. Elements and in respect sums by claimed by Essential in this Adjudication in respect of the Defects, all incurred from 2020 onwards, is to be found in its witness statements and expert reports, specifically that of Mr Conway: and/or 78.2 why, if such is so, it considers that whether or not there is double recovery of quantum is relevant to whether matters, such as defects and delays caused by other parties, in in particular, by Elements, which DBC says materially contributed to the manifestation of defects in the brick slip cladding sometime after practical completion. 79. Having considered Conneely’s renewed, but significantly narrower and more focused request for disclosure by its note of the22nd March 2024 , I direct that, as it requests, Essential should disclose, if such exists, any evidence adduced in Mr Mastrandrea’s Adjudication that defective work by Element affected the sequencing of the works and/or the structural loading on the structure of Block A and/or Block B, and/or of changes in structural loading or structural design of Blocks A and/or Block B resulting from defective work by Elements prior to or whilst Conneely’s works were undertaken, including but not limited to balcony structural strengthening works.”
“Conneely has only now been able to see the material from the Adjudicator in the Essential Living v Elements case. Based on the details of the quantum award that are visible, Conneely does not consider that Essential Living as double counted this claim. However, Conneely does not have full sign [I think that should be ‘sight’] of all of the relevant materials, and reserves the right to make this assertion elsewhere, in another adjudication or litigation.”