Appearances matter

Posted: 1st August 2011

An adjudicator in a construction dispute who issued a statement of ‘preliminary view and findings of fact’ without having received the evidence of the respondent was found by the court to have offended natural justice by failing to give both sides a fair hearing. The statement was said by the adjudicator to be ‘preliminary’ and ‘not binding’. However, it read like a draft of a decision.

Property under construction
The adjudicator’s decision, issued some time later, was essentially the same as the preliminary statement.
On appeal, the Technology and Construction Court found that the adjudicator’s decision was unenforceable on the ground that it failed to afford natural justice.
The failure to wait until the respondent had presented its evidence was compounded by the statement not being made available to both sides before being formally issued, thus depriving the respondent of the chance to challenge its contents, which gave the appearance of unfairness in the decision.