If one looked at clause 2.3 of NEC3 it was arguable such matters might be material to the decision making process. It was hard to see that fairness would not require disclosure of such material. The court inclined to the view that natural justice required:
It was implicit in the decision that in accepting the pursuer’s figures, the adjudicator was rejecting the defender’s figures. The adjudicator had obviously expected demobilisation costs to be vouched and based on actual costs incurred. It was not necessary for him to say more than he had about the various elements of the claim. The Scott Schedule with the decision showed the constituent elements of the amount awarded. Ground 4 – Breach of natural justice in employing a quantity surveyor to assist him without first telling the parties of such engagement and its purpose. The question to be answered was this: “Was there an opportunity afforded for injustice to be done?” The adjudicator’s terms allowed for him to employ a quantity surveyor to assist him if he thought fit. The defenders complained that he had not warned the parties that he intended do so or what the quantity surveyor was to assist himwith. The pursuers relied on the adjudicator’s terms as compliance with clause 2.3 of the NEC3; that the court should imply that the assistance was merely administrative or clerical and did not call for disclosure or comment, applying the presumption of propriety on the part of the adjudicator. The court did not find these arguments compelling. The adjudicator’s terms did not communicate an intention to employ quantity surveying assistance. It purported to make provision for what might happen if it subsequently transpired there was need for such input. It was going “too far too fast” to infer at this stage that the assistance provided was of a kind that did not require disclosure.
(i) that the adjudicator ought to have told the parties that a surveyor had been engaged and
(ii) that whilst detailed disclosure for comment would not have been necessary, the adjudicator ought to have indicated in brief, broad terms, what the surveyor was doing. Without further enquiry it could not be concluded on present material whether or not the breach of natural justice was material. It could not be said the defence was bound to fail.
The case was put out to order and for discussion of further procedure.
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