ABB Ltd v Bam Nuttall Ltd
[2013] EWHC 1983 (TCC)
Here, the Claimant successfully argued that an adjudicator’s decision should not be enforced because there had been a material breach of the rules of natural justice. It was common ground that the adjudicator had referred in his decision to a particular clause of the contract which neither party had raised and which the adjudicator did not refer to the parties before issuing his decision. Mr Justice Akenhead said it was perfectly legitimate for an adjudicator to raise new points with the parties and invite comment, argument or even evidence. Having done that, it will generally be perfectly fair and proper for an adjudicator to rely upon that point in reaching his decision. That did not happen here and the issue was an important one. The Judge noted that:
“Even if an adjudicator’s breach of the rules of natural justice relates only to a material or actual or potentially important part of the decision, that can be enough to lead to the decision becoming wholly unenforceable essentially because the parties (or at least the losing party) and the Court can have no confidence in the fairness of the decision making process.”
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