107772.001 SH Construction Case Booklet

5. Jurisdiction – Bias Charles David Hoyle v B.A.K. Building (Contracts) Limited 9 This was an application by the Claimant, Mr Charles David Hoyle to enforce the award of an adjudicator’s decision in his favour. The Defendant (“B.A.K.”) who did not attend the hearing sent a letter to the court asking for an adjournment. In the judgment the learned judge noted that the parties entered into an oral contract in May 2017. In his notice of adjudication, Mr Hoyle claimed the sum of £3,850.96 for the provision of on-site carpentry works at Langdale Gardens and Clifton Court. The redress sought was the payment of that amount. Mr Hoyle was represented by his son, Andrew, who was a quantity surveyor. Mr Conway was appointed adjudicator on application to the Chartered Institute of Arbitrators. B.A.K sent Mr Conway a letter which said it did not recognise the adjudication nor agree to be responsible for any fees. Their reasons were: 1. Mr Charles David Hoyle had no written contract with them for the carrying out of works. 2. “The surveyor who was dealing with this matter on behalf of Mr Hoyle we understand is his son and therefore there is a clear conflict of interest and any analysed and valued work assessed by the claimant is not agreed.” B.A.K. also disputed the hours claimed and the standard of work. Mr Conway dealt with that letter as if it was an objection to his jurisdiction. He said: 1. Mr Hoyle’s entitlement to refer to Adjudication is not dependent upon Mr Hoyle having a written contract with B.A.K.. Such requirements for a written contract do not apply to the Housing Grants Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009. 2. The fact that Mr Charles David Hoyle was represented in these proceedings by his son, Andrew, was irrelevant. He saw no ‘conflict of interest’ as suggested by B.A.K. He was not aware of any requirement for impartiality between a party to adjudication and its representative. Jefford J held that was entirely right. The grounds of the application to adjourn were that both the claim form arrived when the responsible director was on annual leave and the need to serve a defence within the abridged time limits was appreciated. Since then the persons with personal knowledge of the matter had gone on annual leave and were not available at the hearing date. The Court found that the Claimant’s solicitors had notified the Defendant of the hearing date 2 weeks before the director had gone on leave. Nevertheless it would address the ‘skeleton argument’ filed in support of a request to be allowed to file evidence in opposition out of time.

The basis of the skeleton was first, that the adjudicator acted “outside the matter being referred” that is outside his jurisdiction and did not answer the question which was referred to him. It was said that the adjudicator accepted instructions and dealt directly with Mr Andrew Hoyle who was the son of Mr Charles David Hoyle. B.A.K. argued that “we did not see any authority or any indication of an authority from CDH that authorised his son to deal with this matter, the adjudicator was not directly instructed.” The Court held the points were utterly ill-conceived. The Claimant could be represented by whomsoever he chose and therewas no need for a form of authority to be produced or for the Claimant to show he had enter into any other formal arrangement. The fact that the adjudicator received submissions direct from Mr Andrew Hoyle had no impact on jurisdiction whatsoever. Under the heading: “Adjudicator acted outside the matter being referred” were listed matters going to the terms of the contract between Mr Charles David Hoyle and B.A.K. and what, as a consequence, Mr Charles David Hoyle was entitled to be paid. They are all, therefore, matters that challenged the substantive decision of the adjudicator. It was well-established that the Court, on an application for summary judgment to enforce the decision of an adjudicator, was not concerned with whether the decision was right or wrong but merely with whether it was made within his jurisdiction (which in this case) it clearly was or whether there was, in some other respect, a breach of natural justice in the obtaining of the decision. Under the heading, “Adjudicator showed bias” it was said “As can be seen above, the adjudicator failed to take account of evidence sent to himand relied instead on the unevidenced allegations of CDH” . Four examples were given. They were all issues that went to whether the adjudicator’s decision was right or wrong. They did not come close to establishing bias on the part of the adjudicator. The learned judge observed that B.A.K. participated in the adjudication without either continuing to reserve their rights in respect of the jurisdictional argument or raising any argument that the adjudicator was acting in breach of natural justice and/or showing bias. The last point taken by B.A.K. was that Mr Andrew Hoyle, was the son of Mr Charles David Hoyle. It was believed that Mr Andrew Hoyle, a surveyor by profession, was consulted and relied upon by the adjudicator. This point was wholly unsubstantiated and appeared “in the vaguest possible way” to allege that the adjudicator, himself a qualified chartered surveyor, had somehow improperly relied on the representative of the referring party in reaching his decision. The learned judge could see absolutely nothing in the point and no evidence that could have been adduced had an adjournment been permitted, that could support any allegation that Mr Conway had acted in a way that was biased or otherwise improper so as to vitiate his decision. Adjournment was refused, and Judgment entered accordingly, with costs to be assessed.


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