2) Natural Justice – adjudicator adopting his own analysis – Van Oord UK Ltd v Dragados UK Ltd [2022] CSOH 30 Lord Braid (judgment 7 April 2022)
Dragados further complained that had they been denied the opportunity to address this analysis. Had they been given notice, they would have contended that the claim was out of time. Vol’s position was that the adjudicator had adopted an intermediate position which he was entitled to do without having to give the parties notice.
Background and contentions
The law
Dragados, the main contractor for the Aberdeen Harbour Expansion Projec, sub-contracted the dredging works to Van Ooord (VOL) on an NEC form of contract. There were delays and Dragados purported to terminate the sub-contract. In the aftermath there were seven adjudications between the parties. One adjudication resulted in a decision that VOL was entitled to an EOT and prolongation costs for a compensation event that delayed access to open- quay work. VOL sought to enforce that part of the decision that related to its delayed access claim. Dragados said that part of the decision was unenforceable, the adjudicator having reached his decision on a basis not canvassed by either party or their experts, and which they had no chance to address.
An adjudicator should not decide a factual or legal point on a basis not put to it by the parties.
The adjudicator may reach a decision on the material before it, on a basis for which neither party had contended provided the parties were aware of the relevant material and the issues had been fairly canvassed[10]. If the adjudicator proposed to use its own knowledge and experience to advance a proposition of fact or law not argued by the parties, it would usually be appropriate to raise the same with the parties before making a decision[11]. An adjudicator would be afforded ‘considerable leeway and could adopt an intermediate position not advanced by either party, without needing to give notice and opportunity to comment[12]. A breach of the rules of natural justice would need to be material before it would vitiate a decision. It would be material where the adjudicator failed to bring to the attention of the parties a point or issue which they ought to have been given the chance to comment on, or which was either decisive or of considerable importance to the outcome.
The adjudicator had:
Founded his analysis on a baseline programme dated 15 march 2019, which both experts had rejected as starting point, instead using programmes dated October 2018 and April 2019 respectively Calculated the impact of delay from 31 July 2019, a date earlier than the critical date relied on by either expert.
[10] Roe Brickwork Ltd v Wates Construction Ltd; Costain v Strathclyde Builders Ltd 2004 SCLR 707 [11] Miller Construction (UK) Ltd v BDP [2014] SCOH 80 [12] Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Lt
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