Cases - Try Construction Ltd v Eton Town House Group Ltd

Record details

Name

Try Construction Ltd v Eton Town House Group Ltd

Date

(2003); [2003]

Citation

87 Con LR 71; BLR 286 TCC

Keywords

Construction contracts - adjudication - adjudicators - bias - natural justice - use of an expert - enforcement - whether the adjudicator was entitled to assistance from a programming expert - where the adjudicator had relied upon the assistance from a programming expert, whether the adjudicator's decision should be enforced

Summary

Try were converting a former bank headquarters into a luxury hotel. Eton were the employers. Disputes arose between the parties as to entitlements for extensions of time, loss and expense and liability for liquidated damages, which were referred to adjudication. The adjudicator indicated that he wished to obtain assistance from a programming expert and the parties agreed.

The adjudicator decided in favour of Try, and Try brought these proceedings to enforce that decision by way of summary judgment.

Eton resisted the application for summary judgment on the basis that, among other things, the adjudicator had delegated his decision to the programming expert, and had used his own methodology without bringing that to the attention of the parties.

The judge was referred to the case of Balfour Beatty v Lambeth (2002) but distinguished that case on the basis that in Balfour Beatty there was no analysis at all put forward by the contractor and the adjudicator without agreement or notice used an entirely independent analysis. In this case the representative of Eton conceded that both parties expected the adjudicator's programming expert to approach his task as a delay expert informed by the collapsed as-built technique insofar as he could on the information available to the adjudicator and elicited by him.

The judge concluded that what the adjudicator did was to consider the evidence, then come to a conclusion based on the evidence before him; the adjudicator's decision was clearly the product of the process that Eton had accepted. Also, that Eton agreed to a process that involved the use of a programming expert using his expertise to consider and analyse the entitlement to an extension of time on an as-built basis. In addition, that Eton had further agreed to the adjudicator, using that analysis, taking into account the concessions made by Eton as to the criticality of the first floor and the defences raised by Eton as to the concurrent and culpable delay.

The judge said that this was a transparent process sensibly and pragmatically agreed by the parties and that, on an analysis of the decision, no matters were considered to be outside the argument developed by the parties.