form ’ , but the parties had never agreed which of the JCT forms would apply. The adjudicator ordered Kingsmead to pay £49,664. They failed to pay and Bexhill sought enforcement. The parties did not ask
the adjudicator to provide reasons for his decision but he gave brief reasons.
Before the court, Kingsmead contended the adjudicator had not considered its actual defence. They said
that in effect there were two rounds of submissions (i.e. two claims and two defences) and that Bexhill
did not nail its colours to the mast until the second round, i.e. by its Reply, saying that it was entitled to
payment by virtue of doing the extra work. That was when Kingsmead, by its Rejoinder, set out its case
that if the subcontract was relied upon rather than the JCT terms, the claim must fail because Bexhill
had not received written approval for the extra works claimed for as required by the subcontract. They
said the decision did not address the defence that no approval had been given.
The court noted the broad nature of the dispute: was Bexhill entitled to the sum claimed? The sub-issues
were whether or not any JCT terms were incorporated, and whether or not Bexhill was entitled to any
payment either under the subcontract, the Act or the Scheme.
The judge found that there were not two discrete rounds of submissions. The submissions were to be
considered as a whole and as an evolving position of both parties. Moreover, the nub of the defence
(that there was no contractual basis for the claim) was there in the Response to Referral. Further, when
challenged post-decision, the adjudicator said he had considered everything. At paragraph 30 the judge
made these important comments:
“30. It is further relevant to the issue of whether the adjudicator considered the defence that neither party asked the adjudicator to give any reasons whatsoever. Whilst the reasoning in the decision arguably could have been fuller, and the basis for all of the arguments set out more extensively, the adjudicator answered the question posed to him. In the absence of authority, I do not accept that having chosen to provide some reasons when none were requested, the adjudicator then obliges himself to provide reasons and a discussion on every point raised. It is a low bar for the adjudicator to negotiate in terms of reasons. If the adjudicator has answered the question posed to him and reached certain conclusions on the legal points raised and given reasons for those decisions which are comprehensible, that suffices even if the decision is wrong ” [Emphasis supplied.]
The judge went on to decide that, looking at the decision itself, there was no real prospect of arguing
the adjudicator had failed to consider everything. He said he had done so and specifically noted the
Rejoinder. And, as he noted, not all of the submissions bore on the matters to be decided and despite the positions ‘evolving’ the dispute remained essentially the same.
In applying the Act and the Scheme and deciding there was an entitlement under the Scheme, the
adjudicator reached a decision he was entitled to make. There was no breach of natural justice.
11
Made with FlippingBook flipbook maker