(1) the without prejudice material was ‘ front and centre ’ within the adjudication and played a significant role in AZ's case.
(2) the material contained implicit admissions by BY that were plainly inconsistent with its
open position and the contractual position it was arguing for in the adjudication.
(3) as such, the material was not just prejudicial and adverse to its interests but also related to
central issues in dispute. It was like an adjudicator knowing not just that an offer had been
made, but the amount of the offer. (4) there was, despite the way the decision was expressed, “ an inevitable question mark ” about whether the result of the adjudication, however inadvertently or sub-consciously, was shaped
by the adjudicator's knowledge of the concessions as to key aspects of the open dispute made
by BY in negotiations.
(5) the inevitable question mark was even more acute when the adjudicator had formed the
view, also in error, that these matters had in fact been agreed (and not just put forward in a
commercial offer which might be easier to put out of one's mind).
In consequence, this was one of the few cases in which a breach of the rules of natural justice, by reason
of apparent bias, dictated that the Decision should not be enforced.
So as not to prejudice future proceedings between them, and in light of the general importance of the
issues raised, the parties were thanked for their agreement to an anonymised and redacted version of
the judgment being published.
Comment
The judgment repays careful reading. Where WP materials appear to be admissible and deployed, the
adjudicator should consider whether, having read them, they can fairly go on to consider the dispute to
which they relate. It may be the adjudicator would be wise to make clear at the outset, that once the
materials have been considered, and whether admitted or not, the adjudicator must next apply the test
of apparent bias and may feel prevented from going on to decide the dispute to which they relate.
Despite the way this case unfolded, the materials having been considered and (as it turned out) wrongly
admitted, the risk of unconscious bias would have remained to be evaluated either way.
Natural Justice – Failure to consider a line of defence Bexhill Construction Ltd v Kingsmead Homes Ltd [2023] EWHC 2344 (TCC) before Her Honour Judge Kelly
Bexhill claimed payment for extra work under a labour only subcontract for works on a project in Warrington. The dispute was referred to adjudication. One of Kingsmead’s defences was that the re was no contractual basis for the claim as the written evidence of the subcontract referred to the use of a ‘ JCT
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