3) Natural Justice – adjudicator deciding issue on basis not advanced – Liverpool City Council v Vital Infrastructure Asset Management (Viam) Ltd (In Administration) [2022] EWHC 1235 (TCC) HH Judge Stephen Davies (judgment 24 May 2022) The claimant Liverpool City Council (LCC) were adjudged liable at adjudication to pay the defendant (Vital) £128,500 for work under a maintenance contract for temporary fencing for highways. The parties entered into a framework agreement under which each work project would be the subject of a separate call-off contract based on NEC3 as amended and supplemented by the provisions of schedule 9 of the framework agreement. A number of issues arose which it was argued by LCC meant the adjudicator had no jurisdiction. The dispute resolution provisions of the framework agreement and call off contract were key to issues (1) and (2) as set out below.
During the hearing the court suggested that the Nullity Issue might more properly be a natural justice issue. That then became: ( 4) Whether the adjudicator had decided the case on a basis not advanced by Vital, the referring party in the adjudication (the Natural Justice Issue).
(1) the Two Contracts Issue and (2) the Notice Issue
The dispute resolution provisions of the framework agreement and call off contract were key to issues (1) and (2) which were dealt with together. The notice of adjudication was sent to the Head of Procurement as specified in cl. 53 of the framework agreement. The ANB in the framework was RIBA yet Vital said it intended to ask ICE to appoint (it being the ANB under NEC3). The inconsistency is apparent. The notice went on to say that the dispute had arisen under both the framework agreement and the call-off contract and identified the dispute resolution procedure as that under both the framework agreement and the call- off contract. The ultimate relief claimed was the payment of money under the call-off contract but the staging posts to that included declarations as to matters under both contracts. In the adjudication and in court LCC claimed the dispute arose under both the framework agreement and the call-off contract and that as the adjudicator could not decide more than one dispute at the same time, he was deprived of jurisdiction.
The issues
(1) Whether there was more than one contract (the Two Contracts Issue)
(2) Whether the notice of adjudication had been properly served in accordance with the framework agreement (the Notice Issue)
The court did not agree for three reasons.
First the dispute resolution provisions agreed expressly contemplated that a dispute might raise questions under both contracts and under such circumstances could be referred under the call-off contract.
(3) Had the adjudicator answered the wrong question (the Nullity Issue)
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