SGL engaged RBG to carry out works at SGL’s premises. The contract was an amended NEC3 with Option C. In a second adjudication between the parties the Notice of Adjudication requested that the Adjudicator determine the cumulative amount due to RBG up to date of the Notice (which was 7 April 2010) and the amount of repayment due from RBG to SGL. This scope included the 2009 invoices which had been the subject to the first adjudication. In the second adjudication, the Adjudicator found RBG liable to pay SGL the sum of around £1.2m.

RBG resisted enforcement as:

1. The Adjudicator’s decision, or part of it, had been made in breach of natural justice as the Adjudicator had made use of his own knowledge and experience to: (a) to make factual determinations for which there had been no evidence; and (b) without giving the parties a reasonable opportunity to comment on them.
2. The Adjudicator had failed to exhaust his jurisdiction as he had not considered SGL’s defence and failed to include in his calculations the amount for the invoices that were the subject matter of the first adjudication.

The Judge determined that the Adjudicator had breached natural justice as he had sought to use his knowledge and experience to arrive at a conclusion on certain issues on the basis of “facts” that went beyond either party’s evidence. This approach was flawed because (i) the parties had already given evidence on the issues in dispute and it was not for the Adjudicator to introduce new evidence and (ii) despite requests, the Adjudicator had failed to identify the relevant experience that he brought to bear on the issues. Further, the parties had not been given a reasonable opportunity of responding to the Adjudicator’s assumptions.

The Adjudicator had also failed to exhaust his jurisdiction. It was accepted by the parties that an Adjudicator could not decide a dispute that was the same or substantially the same as one that had already been subject to adjudication. Although the decision in the first adjudication had been set aside ope exceptionis, it still stood. The Adjudicator had been appointed to determine sums due to RBG up to 7 April 2010, however, he had only assessed the sums due up to 31 December 2008 (therefore not including the 2009 invoices). It was a failure which, if uncorrected, would be highly prejudicial to RBG since it would mean that they would have to repay a substantial amount more to SGL. In failing to take the 2009 invoices into account, the Adjudicator had failed to exhaust his jurisdiction.

Whilst acknowledging that whilst a decision from a prior adjudication was binding, there was no possibility of a further adjudication of the same dispute, the Judge went on to clarify that if the decision was held not to be binding on the parties, for whatever reason, then the parties (or one of them) should be free to refer the dispute again to adjudication if they wished.