A. There must be a realistic prospect of establishing a breach of the rules of natural justice or an excess of jurisdiction by the adjudicator. B. Enforcement is not refused for mere error of fact or law. C. Any breach of the rules of natural justice must be material ( Cantillon Ltd v Urvasco Ltd ), or more than peripheral. For example, the adjudicator failing to bring to the attention of the parties an issue or point which may be decisive or of considerable importance. D. It was a question of fact and degree in any given case. E. An adjudicator can come to a position which is somewhere between the parties’ respective positions. In particular, the adjudicator could decide to crudely ‘split the difference’ without further consultation with the parties ( Arcadis UK Ltd v May and Baker Ltd ).
Findings
The Judge decided that the adjudicator had not breached the rules of natural justice in failing to go back to the parties for additional submissions in respect of ‘fair and reasonable’ rates and the single remeasurement. Each party specifically asked the adjudicator to award the amount each of them submitted for the gross valuation or ‘such other sums as the adjudicator shall see fit’. The adjudicator was not tasked with making declarations as to the individual rates when valuing the sub-items within each of the disputed changes. It was relevant that he was asked to make an overall gross valuation of Application 37. It was acceptable for the adjudicator to come to a different view from the parties in respect of the value of a particular item considered to be fair and reasonable using the documentation provided and submissions made by the parties. The adjudicator did not fill in a gap in the evidence, as the defendant had argued. The issues were canvassed fairly. The court regarded it as significant that, in respect of each ‘fair and reasonable’ rate and of the single remeasurement item used to calculate the gross value of each change, that value was an intermediate position between those contended for by the parties or was more favourable to the defendant. Had the adjudicator split the difference between the parties, the defendant accepted it could have had no complaint. It would be wrong to accept the defendant’s ‘granular’ approach. It was accepted that some justification for reaching the global figure was needed, and that was given. The defendant must also establish that any breach, if proved, was material. They failed to do this. The defendant had suffered no substantial injustice as a result of the adjudicator’s approach. In all but two cases, the use of a fair and reasonable rate was more favourable to them than their own rates. Where a less favourable rate was
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