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Any breach proved must be substantial and relevant. 10.30 In AWG Construction Services Ltd v Rockingham Motor Speedway Ltd (2004)42 the referring party made out a completely new case in its reply and it was held that the responding party was not given adequate opportunity to deal with the new case. In practical terms, that consideration is likely to amount to no more than a scrutiny of the particular allegations as to why the Defendant claims that the adjudicator acted in breach of natural justice. Such points would have to await analysis of the adjudicator’s decision once it was issued. Latest Articles & Legal Updates from the construction and property worlds as seen by our teams. First, where the adjudicator erroneously determines as a matter of jurisdiction alone (where such jurisdictional decisions do not bind the parties) that he cannot consider a defence and therefore ignores it, there will have been a breach of natural justice.44 There is clear injustice where a party is denied having its defence considered on its merits when it should have been, and such errors will generally be considered to be a material breach, as long as the defence has a real, as opposed to fanciful, prospect of success. In my view, the adjudicator did not act in accordance with the rules of natural justice nor, in the words of Judge Humphrey Lloyd Q.C did he conduct the proceedings “as fairly as the limitations imposed by Parliament permit”. 182. However, the court will not investigate the facts to determine whether the adjudicator would have reached a different decision had the evidence and argument in question been considered.45, 10.39 Secondly, cases where the adjudicator determines on the merits that the defence does not represent a proper legal defence. This decision was criticized by the commentators in the Building Law Reports but was quickly followed by the case of Austin Hall Building Ltd v Buckland Securities Ltd (2001).17 Despite approaching ‘the matter from a different direction’, Judge Bowsher concluded that the process of adjudication could not be described as legal proceedings by a public authority (and thus caught by the Convention and the Human Rights Act) as adjudications were designed to avoid the need for legal proceedings.18, 10.15 No further challenge to the inherent fairness of the adjudication procedure based on the Convention or the Human Rights Act has been made since 2001. It applied to the court in a Part 8 application, claiming that the timetable was too tight and that there was a very real risk of a breach of natural justice. The adjudicator was of the view that he could fairly determine the adjudication within the agreed timetable—this was in many ways the most important factor. The adjudicator’s duty to determine the adjudication fairly is a continuing one. Principles of natural justice. (b) What matters is whether, notwithstanding the size or complexity of the dispute, the adjudicator had: (i) sufficiently appreciated the nature of any issue referred to him before giving a decision on that issue, including the submissions of each party; and (ii) was satisfied that he could do broad justice between the parties (see CIB v Birse). 10.04 Absent agreement of the parties, adjudication under the Act is subject to strict time limits. It was not some mere technical breach. Download PDF Print page Breach of Natural Justice. Please enter the fields and submit it again. In particular, a Court will ask whether he has complied with the adjudication process established by the parties’ agreement or the Act and/or the Scheme. They will usually require an investigation of the true construction of the payment and withholding notice provisions and a factual investigation of any documents that purport to be notices. It is now well settled, as discussed in Chapter 9 on jurisdiction, that the responding party is entitled to raise any defence that is a proper defence in law to the claim being made. The adjudicator’s decision expressly stated as follows: Whilst I have not carried out a forensic analysis of all documents submitted by the Parties, which are numerous, I have spent considerable time and I believe sufficient time reviewing the documents in order to appreciate the nature of the issues presented to me and to understand the case of each party in relation to the principal issues. The timetable had been extended by agreement and the responding party not only had from 19 December 2008 until 28 January 2009 to submit its response (which could have included working over the Christmas period if it so wished), but was also timetabled to have the ‘final say’ by way of scheduled rejoinder. The principles of natural justice and procedural fairness are based on the theory that the substance of a decision is more likely to be fair if the procedure through which that decision was made has been just. 00398875) List of members is available at the Registered OfficesRegistered Office: 35 Great St Helen's, London, EC3A 6AP Registration numbers: OC306521/ VAT No 8317631332 - ©2018 ALL RIGHT RESERVED - Silver Shemmings Ash, Construction & Property Law. The reception of the additional evidence and the failure to give Waterman the opportunity to deal with it amounted to a breach of natural justice, because the Adjudicator as to vital issues based his decision on matters that Waterman could not properly deal with. Breach of Natural Justice's Tags. 10.34 Held: Coulson J refused to grant the declaration sought by the claimant for four main reasons: 1. AWG had only five days to respond before the adjudicator issued his decision in which he found in favour of Rockingham on the grounds set out in Rockingham’s late report. 10.12 The manner in which the adjudicator has conducted himself in order to perform the balancing act between natural justice and tight time constraints is the prime consideration. It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. What is a breach of Natural Justice? That is likely to be discernable from the adjudicator’s reaction to requests for more time during the adjudication. The Adjudicator found that the settlement was reasonable on the basis of the very evidence about which Waterman complained and in the absence of the expert quantum evidence which Waterman did not have a fair opportunity to adduce …. Such cases turn on their own particular facts, including the nature of the defence that it is said was ignored and whether it can be said from the terms of the decision that the defence was considered and dismissed. Silver Shemmings Ash are currently running all Seminars as online events in line with Government advice. Waterman requested an extension of time to deal with the evidence on the basis that its quantum expert was away and would not be back until after the decision was due to be made. 10.26 As with the question of the complexity of the matter as a whole, the primary consideration is whether the adjudicator considers he has time to deal with the matter fairly.35 If the adjudicator considers that there is insufficient time in the adjudication timetable for a party to respond adequately to new issues arising during the course of an adjudication, then the adjudicator should seek the parties’ consent to extend the timetable, or should resign.36 If the adjudicator does neither and then bases the decision on that evidence, then there may be grounds for the decision to be challenged. The House of Lords have said, in another context, that quite what ‘fairness’ requires will depend on the character of the decision-making body, the questions it is being asked to answer and the framework (statutory or otherwise) in which it is operating.1 In the most general terms, natural justice requires that a party should have the right to prior notice of the case against it and a fair opportunity to make representations before a decision is made; the specific requirements will depend on the circumstances of each particular case.2.

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