GSEL v Sudlows: Adjudication enforcement, natural justice and challenging a decision

Introduction

Adjudication can be a frustrating experience, particularly for those who have been faced with a decision of the adjudicator that is quite obviously (to you) wrong, but nonetheless enforceable.

This situation arises because it has long been accepted that, in adjudication, “the need to have the “right” answer has been subordinated to the need to have an answer quickly…” per Chadwick LJ in Carillion v Devonport Royal Dockyard [2005] EWCA 1358.

The Court’s stance on this issue is born from the original intent of the statutory scheme, which was to provide a means for contractors and subcontractors to address cash-flow problems caused by illegitimate delays or refusals to pay. In order to achieve that, adjudication decisions have to bear the weight of authority, otherwise every adjudication decision would immediately be challenged by the losing party.

The Courts also take into account the fact that the adjudicator is tasked with deciding often very complex and detailed disputes in a very short period of time. Errors in decision-making from time to time are therefore inevitable, but the Courts have determined that that shouldn’t be allowed to undermine the process.

Continue reading “GSEL v Sudlows: Adjudication enforcement, natural justice and challenging a decision”

Adjudication during the COVID-19 lockdown – breach of natural justice?

By Vijay Bange and Tanya Chadha

In the UK, adjudication remains one of the quickest and most cost effective methods of resolving construction disputes.  As most people adjust to the “new normal” of working from home, an away from the usual office environment, adjudication may not be at the top of everyone’s agenda.  That is somewhat ironic given that the current COVID-19 situation is fast becoming a potential breeding ground for construction disputes.  Projects are in delay, labour and materials supply may be an issue and cashflow may become and inevitable effect of the lockdown.

The courts have shown a resolve to carry on with court business where there are live proceedings. There was however some uncertainty as to what approach the TCC would take in relation to adjudications during the period of lockdown, particularly given the fast and furious nature of the process. Would breach of natural justice arguments hold strong in adjudications pursued during this restrictive period of lockdown?  What would be the position where some relevant participants are self-isolating?  Can the adjudication process be conducted fairly, and with proper regard to the rules of natural justice? Continue reading “Adjudication during the COVID-19 lockdown – breach of natural justice?”