difficulty in which he was placed by determining that LCC had implicitly if not explicitly conceded that the rate in the SoR was a mistake. However that was not Vital’s case and he did not give LCC fair notice of what he was considering and an opportunity to address it. Nor did he engage with LCC’s case in the response as to the order of precedence clause which prevented a mistake being corrected as alleged by Vital. These were described as “fundamental departures from the obligation to follow a fair procedure” nor had the adjudicator adopted any of the three options he put forward in his email of 20 May. LCC was deprived of the opportunity of arguing these points and was entitled to a declaration that the decision was unenforceable as matter of law. Although he made representations to the court with permission, the adjudicator was not a party to the proceedings and not bound by the decision. The administrators of Vital declined to take part.
Comment
It is fair to mention that the court accepted and stated that the adjudicator has acted from the best of motives in trying to determine the parties’ dispute. That said it is a fundamental requirement that adjudicators give parties notice and an opportunity to address them if they intend to consider taking a course that has not been argued or canvassed, or is based on their own analysis of the provisions of the contract or issues before them.
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