(ii) Home Group’ s unreasonable refusal to provide MPS with data or access to the underlying documents until the last moment, and
(iii) a lack of sufficient time for MPS and its experts to interrogate and fairly respond to
the referral.
Volume of materials
MPS said that if the electronic data comprising and supporting the referral was reduced to paper
it filled 127 double-sided lever arch files, equivalent to 32 standard boxes. Home Group pointed
out that the hard copy documents delivered to the adjudicator filled 7 boxes. The court held
that irrespective of whether the correct number was 7 boxes or 32 boxes, the quantity of
information of itself did not present a valid basis for challenging enforcement.
Access to data Home Group’s offer of access to its data before the adjudication was conditional upon
agreement to a sampling exercise. The court said that had MPS reserved its position as to the
nature and extent of sampling but requested access it would have been difficult for Home Group
to have refused. Or had it refused, the complaint would then have had substance.
Time to respond
MPS and its experts would have had sufficient time to respond if they had acted immediately
instead of complaining at the lack of time and losing three weeks in tactical manoeuvring. The
court noted that the adjudicator was able to address the issues (including particularly the
allegations of quantum duplication) by undertaking a sampling exercise and that MPS did in
fact make considerable inroads into the quantum of the claim which was originally in excess
of £8m.
In reviewing the considerable body of case law on the subject, the court concluded:
(1) Adjudication decisions must be enforced even if they contained errors of procedure, fact or
law.
(2) A decision would not be enforced if it was reached in breach of natural justice and the
breach was material, i.e. led to a material difference in the outcome.
(3) Complexity and constraint of time to respond were inherent in the process and no bar in
themselves to enforcement.
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