Cases - RSL (South West) Ltd v Stansell Ltd
Record details
- Name
- RSL (South West) Ltd v Stansell Ltd
- Date
- (2003)
- Citation
- CILL 2012 TCC
- Legislation
- Keywords
- Construction contracts - adjudication - fairness - adjudicator failure to give parties opportunity to comment - whether breach of natural justice - unlawful delegation of duty to decide - summary judgment - interim payments
- Summary
-
Stansell are a building contractor, RSL a steel fabricator. Stansell appointed RSL to undertake structural steel work and staircases in respect of a project in Bristol. Disputes arose between the parties in relation to the entitlement of RSL, including claimed amounts for loss and expense. This dispute was referred to adjudication on behalf of RSL and the adjudicator requested permission to appoint a planning expert.
The parties agreed to the appointment of a planning expert subject to being supplied with copies of the instructions, the responses and any reports.
A report was produced, which was disclosed to the parties and which the parties were given an opportunity to comment on. Having received those comments, the planning expert revised his report and reissued it to the adjudicator, who relied on it in making his decision.
It was contended, on behalf of Stansell, that the decision of the adjudicator was not binding on Stansell because the adjudicator had failed to give the parties an opportunity to comment on the final report of the planning expert before reaching his conclusions. That report had an impact in relation to that part of RSL's claim that related to loss and expense in respect of delay to the completion of the subcontract works.
The judge concluded that it was absolutely essential for an adjudicator, if he is to observe the rules of natural justice, to give the parties to the adjudication the chance to comment on any material, from whatever source, including the knowledge or experience of the adjudicator himself, to which the adjudicator is minded to attribute significance in reaching his decision.
The judge held that in the present case it was plain, in the judge's mind, that the adjudicator should not have had any regard to the final report of the planning expert without giving both RSL and Stansell the chance to consider the contents of that report and to comment on it. If the adjudicator needed an extension of the time for his decision to enable him to provide the necessary chance, then he should have explained that to the parties in seeking their consent to an extension. If he had explained that he needed an extension in order to afford the parties an opportunity to comment on the planning expert's final report, and the parties, with knowledge of the significance of the request for an extension, had not agreed to one, the likelihood is that they would be taken to have waived the right to raise an objection that they had not had the opportunity which they had refused.
Having failed to persuade the judge to give summary judgment in respect of the whole of the adjudicator's decision, RSL sought summary judgment in respect of that part of the decision that was not affected by the planning expert's report.
The judge concluded that in those cases where several disputes are properly referred to a single adjudicator in a single notice, it may be possible that a valid objection to the decision in relation to one dispute will not affect the validity and enforceability of the decision in relation to another. However, the judge was not prepared to accept that any decision of an adjudicator to which a valid objection can be taken is severable so as to separate out those parts upon which the objection bites from those parts that are unaffected.