The recent English TCC judgement in the case of Broughton Brickwork Ltd v F Parkinson Ltd reiterates the court’s reluctance to interfere with an adjudicator’s decision. It also acts as a reminder that the clear presentation of a case at adjudication is important.
Broughton Brickwork were employed by F Parkinson as a sub-contractor on a building project. The terms of the contract provided for adjudication under the Scheme for Construction Contracts. The contract also specified service methods and timescales for payment and pay-less notices.
An interim payment application was made by Broughton Brickwork but this was not paid. They raised adjudication proceedings against F Parkinson.
The adjudicator was asked by F Parkinson to consider subsequent payment cycles which included payment notices and pay-less notices that addressed the payment issue in dispute. However, the adjudicator found that these subsequent payment notices and pay-less notices had not been served in accordance with the contract requirements. This was because he assumed that their service was by post and, because of the dates of the notices, served late. He therefore found in favour of Broughton Brickwork, ordering payment of a substantial sum.
F Parkinson considered that the crucial pay-less notice had been served timeously as it had been served by email, which was a valid method of service. The email was contained in the adjudication productions and therefore evidenced the valid service. The adjudicator had not had sight of nor considered that email. The adjudicator admitted in correspondence after his decision, that if he had seen and considered the email, he would not have found in favour of Broughton Brickwork. But the reality was that the adjudicator had not seen nor considered the email, and the courts were asked to decide whether his decision should be enforced.
Enforcing Adjudication Decisions
The judge restated the courts preference for enforcing adjudication decisions, even ones which contain errors, noting that “an adjudicator is entitled to make mistakes, whether in fact or law, even ones which are obvious and fundamental, without thereby rendering his decision unenforceable, so long as he acted within his jurisdiction”. He also noted the grounds when a court will not enforce a decision: when a decision is reached in “serious and material breach of natural justice”. He reminded the claimant that adjudication was a “rough and ready” process, which was fallible, but that reason in itself was not sufficient to render a decision unenforceable.
The court did not consider that the adjudicator had a duty or responsibility to look at and consider every piece of information presented to him. Rather, it is the duty of the parties to set out their case clearly, through the written submissions and at any oral hearings.
F Parkinson’s adjudication submission and productions contained numerous errors. The submission documents did not clearly make the point that the crucial pay-less notice had been validly served. They also did not specifically draw attention to or make reference to the email which evidenced the valid service. Further, the production references in the submission contained page numbering errors, meaning that the adjudicator was not directed to the production that contained the crucial email evidence.
The court was particularly critical of F Parkinson’s adjudication submissions and production errors. F Parkinson’s defence relied heavily on the valid service of the crucial pay-less notice (indeed the entire case turned on it) evidenced through the crucial email, so the judge was clear that it was for them to draw it to the attention of the adjudicator, not for the adjudicator to find it.
The court found that the cause of the adjudicator overlooking a crucial point and associated evidence was due to the errors and weak presentation by the claimant. As it was the claimants relying on that crucial point, they had the responsibility to ensure it was adequately brought to the attention of the adjudicator. They had not drawn it to the adjudicator’s attention sufficiently and so the adjudicator had overlooked it.
The court, therefore, did not even consider this to be an adjudicator’s mistake; rather it was an error in the result caused entirely by F Parkinson’s poor submission.
This case highlights that the responsibility for presenting a case and drawing all material facts, circumstances and evidence to the adjudicator’s attention, rests with the parties. An adjudicator would be expected to consider all points made in submissions, and to review all evidence that he is directed to, but not to have to seek out evidence.
A clear submission is essential to set out your arguments. Good presentation is also important, including accurate and easy indexing of productions. Whilst these things seem obvious, in the short timescales of adjudication, even the basics can sometimes be overlooked. It is therefore important to concentrate on quality of submission, rather than the quantity of productions, and focusing on creating and presenting a well thought through and ordered case. In addition, the holding of an oral hearing is likely to materially reduce the chances of crucial points or evidence being overlooked by the adjudicator, or of arguments not being understood.