Findings
In adopting the March 2019 programme as his starting point and reaching 31 July 2019 as the critical date, the adjudicator had not only taken a date earlier than either party or its expert contended for, he had arrived at different critical date than either party had put forward. It was not an intermediate approach (such as was adopted in Miller). It might have been arguable that the adjudicator was entitled to take the earlier programme, thus to arrive at the critical date, but if so he should have given notice to the parties if his intention to do so and a chance to comment. It did not matter whether or not the arguments which Dragados said they would then have deployed were arguments that would have succeeded; the point was they were deprived on the opportunity to raise them.
The beach was material and the court declined to enforce the award.
Made with FlippingBook Ebook Creator