Mr Justice Fraser:
Introduction
- This is an application by Beumer Group UK Ltd ("Beumer") against Vinci Construction UK Ltd ("Vinci") for certain declarations arising as a result of an adjudicator's decision dated 17 June 2016 by Dr Chern. That decision followed a second adjudication between Beumer and Vinci (which I shall refer to as "BV II"). Dr Chern was also the adjudicator on the first adjudication between the parties, the details of which are not relevant to this application.
- Beumer and Vinci had contracted for certain works to be performed by Beumer at Gatwick Airport, namely a Works Package that comprised the Baggage Handling System. That contract was dated 8 November 2012. Vinci was the Main Contractor and Beumer was the Sub-Contractor. The Main Contract works concerned the South Terminal Baggage and Pier 1 - Phase 2 works at Gatwick, and the Employer is Gatwick Airport Ltd ("GAL"). The Main Contract is based upon the NEC 3 Engineering and Construction Contract, Option A. The Sub-Contract, as might be expected, is based upon the NEC 3 Engineering and Construction Sub-Contract, Option A. Clause W2 is the relevant option chosen by the parties in respect of dispute resolution. Further details concerning Clause W2 are dealt with below. Effectively, Beumer was appointed by Vinci to perform the entire baggage handling system works, including what is called a Tilt Tray Sorter. The value of Beumer's works is not agreed, but is in the region of approximately £30 million with further claims. The sub-contract value is therefore sizeable. An Interim Final Account Statement was agreed by the parties in October 2014 but works continued after that, and the parties remain in dispute. The effect of the agreement in that Interim Final Account Statement upon the parties' contractual relationship was considered by the adjudicator in the first adjudication.
- Beumer also had a sub-sub-contract with another company called Daifuku Logan Ltd ("Logan") in relation to the works, and Logan's works comprised the Tilt Tray Sorter. Beumer and Vinci, and also Logan and Beumer, each found themselves in dispute with their respective contracting parties about certain aspects of the works under the sub-contract, and the sub-sub-contract, respectively. There was an adjudication between Logan and Beumer in which Logan referred a particular dispute to adjudication, the adjudicator being Dr Chern. He was one of three individuals identified in the Sub-Contract data as being a potential adjudicator for disputes under both the Main Contract and the Sub-Contract. Logan and Beumer agreed between themselves that he should act as adjudicator on the first adjudication between them (which I shall refer to as "BL I"). The details of BL I are not relevant, but its existence is, because it explains the way in which Dr Chern came to be the adjudicator in both adjudications which are relevant to this application.
- The dispute between Beumer and Vinci which was the subject matter of BV II was whether three instructions issued by Vinci, namely CI 114, CI 115 and CI 116, all issued on 9 March 2016, constituted Compensation Events under the Sub-Contract. Dr Chern decided that they were, and made certain declarations in Beumer's favour to this effect, and ordered that Beumer pay his fees, with the sum paid to be reimbursed by Vinci to Beumer. Beumer made that payment to him, but Vinci did not reimburse Beumer. Beumer therefore seeks summary judgment under CPR Part 24 on its application for declarations by the court commensurate with those decided by the adjudicator, and also seeks payment to it by Vinci of the sums paid by Beumer to him as his costs. As a result of the matters explained further in the next section of this judgment, Vinci opposes enforcement of the decision, relying upon breaches of natural justice. Other, habitual, defences were deployed by Vinci in the adjudication itself, such as non-crystallisation of the dispute affecting Dr Chern's jurisdiction, but these are not relied upon to resist enforcement by the court.
- The witness evidence before the court comes from Mr Bhabra for Beumer, Mr Francis and Mr Ashwood for Vinci, and from Mr Silver for Beumer in reply. I am grateful to Mr Curtis QC for Beumer, and both Mr Lewis and Ms Dynes for Vinci, for their clear and succinct submissions, both written and oral, which helped the prompt resolution of the hearing within a period of half a day - a period that a pessimist faced with the volume of material might have concluded was far too short.
The facts
- Put briefly, on the same day that Beumer commenced BV II against Vinci, namely 18 March 2016, it also commenced a second adjudication ("BL II") against Logan. That adjudication was also before Dr Chern. It concerned similar issues, although within the context of the Logan sub-sub-contract, namely failure by Logan to complete its works by particular dates and a claim by Beumer for liquidated damages for delay. It therefore concerned delay. That adjudication was conducted at the same time as BV II. However, Vinci did not know that there was a simultaneous adjudication ongoing between Beumer and Logan in which Dr Chern was the adjudicator, or of the content of the submissions Beumer made to Dr Chern in that adjudication. Neither Beumer nor Dr Chern notified Vinci of this other adjudication, and Dr Chern did not disclose to Vinci that he was acting contemporaneously as an adjudicator in another dispute to which Beumer was a party (whether on the same project, or at all).
- Dr Chern had been named by Beumer as the potential adjudicator for the dispute in BV II, based upon his having been chosen by both Beumer and Vinci to be the adjudicator for BV I, the first adjudication between the parties, and because he was one of the three individuals named in Option W2. He was in fact the only one of those three with availability at the time of BV I. When that had occurred, in February 2015, Vinci were not told by Beumer that Dr Chern had already been appointed as the adjudicator in BL I. His involvement in adjudications between Beumer and Logan was therefore not brought to Vinci's attention until Beumer's solicitors responded to queries from Vinci's solicitors in July 2016.
The grounds of resistance to enforcement
- Vinci argues that by virtue of being the adjudicator in BL II, Dr Chern must have had, or acquired, background knowledge concerning the subject matter of BV II. Vinci submits that no opportunity was available to it to consider that information, which it is said was plainly relevant, and make submissions about it. As a subsidiary or associated point, Vinci maintains that it was unfair that no disclosure was given to it by Beumer of the material deployed, relevant to the Beumer-Vinci dispute, in BL II. Further, Vinci complains that Beumer advanced factually inconsistent cases in the two adjudications, BV II and BL II. In BV II, Beumer maintained that Airport Operational Readiness ("AOR"), an important date in the Sub-Contract relevant to completion, had been achieved by 16 December 2015. In BL II, part (if not the central plank) of Beumer's case against Logan was that Logan's works (which formed part of Beumer's works) had not achieved the condition of AOR by at least 12 April 2016, hence could certainly not have been in the condition of AOR on the date in December 2015 it maintained (to Vinci) in BV II. These rather starkly contrasting positions taken by Beumer were not brought to the attention of Dr Chern during BV II by Vinci in its submissions, for the obvious reason that Vinci did not know that BL II was even taking place, still less the content of the substantive submissions being made to Dr Chern by Beumer. Although this submission is not made before me expressly, Dr Chern would have known that Beumer's position in the two adjudications was different, because he was conducting both adjudications.
- The relief sought in BV II by Beumer concerned declarations that each of CI 114, CI 115 and CI 116 were compensation events, that Beumer had been prevented from commencing its works, that Beumer had not caused any delay, that the CIs were changes to the Works Information and that the Subcontract Completion Dates should be extended to named dates between 27 June 2016 and 11 July 2016, or such other dates as the adjudicator may decide. In other words, one of the components of that relief was a claim for an extension, or extensions, of time, and the date of AOR was an important ingredient in the length of extension sought. In BL II, one of the elements of relief sought was liquidated damages for delay and payment of costs in respect of a failure to meet the Condition stated for a Key Date (namely to achieve Completion excepting AOR trials) pursuant to Clause 25.3 of the sub-sub-contract, together totalling approximately £2.8 million, and again the date of AOR was an integral component of considering the state of the works at particular dates so that delay could be considered, as delay affects the calculation of liquidated damages and the the applicability of a claim under Clause 25.3.
- Beumer submits before me that there was no obligation upon either Beumer or Dr Chern to inform Vinci either of the existence of BL II, or its content; that Vinci had no right to see the documentation before Dr Chern in that adjudication; and that there was no breach of natural justice. It is also argued by Beumer that the two cases advanced by Beumer were not factually inconsistent, but that even if they were, no consequences flow from that. It is also argued that even if there were some isolated breaches of natural justice these were not material, and that Dr Chern plainly restricted himself in BV II to the material before him in that adjudication alone, as can be seen from his findings in that decision. It is said that this can be seen from the substance of his decision in each adjudication.
The issues on the application
- These were refined during the hearing and fall into two categories, as follows. This formulation was put to both parties who broadly agreed that they encompassed all the issues on the application.
Issue 1.
(a) Did Beumer advance factually inconsistent cases in each of the two adjudications, BV II and BL II?
(b) If so, what if any consequences flow from that?
(c) Was Vinci entitled to be provided with any relevant material from BL II?
(d) If so, what consequences flow from the failure to do so?
Issue 2
(a) Should Dr Chern have disclosed to Vinci that he was acting as adjudicator on another matter, involving Beumer, at the same time as he was acting as adjudicator in the dispute between Beumer and Vinci?
(b) If the answer to that is No, does the fact that the other matter concerned Beumer and Logan on the same project and Beumer's works for Vinci mean he should have disclosed this to Vinci?
The Law
- It is trite law that adjudication is a speedy process designed only to provide what is called "interim finality" on construction disputes. Parliament intended that the parties should be given a quick answer, and that quick answer should be binding on the parties until the dispute, whatever it may be, is resolved finally either by litigation or arbitration. It has been said in a case concerning what is called the statutory Scheme, namely the statutory instrument entitled the Scheme for Construction Contracts (England and Wales) Regulations 1998 ("the Scheme"), by Chadwick LJ in paragraph [86] of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 [2006] BLR 15 that:
"The need to have the 'right' answer has been subordinated to the need to have an answer quickly."
Although made in a case under the Scheme, that statement is of wide application to adjudications generally, whether under the Scheme or otherwise. Adjudicators' decisions will be enforced by the court by summary judgment regardless of errors of fact and/or law by the adjudicator. Aggrieved losing parties can and should comply with the adjudicator's decision, as long as that decision was made by an adjudicator with jurisdiction over the dispute, who has conducted the adjudication fairly and in accordance with the rules of natural justice.
- The rules of natural justice have two limbs, and these are firstly, that a party must have an opportunity to present his own case and meet the case against him, and secondly, that the matter is decided by an impartial tribunal. It is the second of those two limbs that concerns bias, both actual and apparent.
- The submissions concerning natural justice relied upon by Vinci encompass both limbs of the rules of natural justice, although the first limb is emphasised more than the second. Chadwick LJ in paragraph [85] of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 [2006] BLR 15 stated that a decision should be enforced:
"…unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair".
In paragraph [87] he continued:
"To seek to challenge the adjudicator's decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense…."
The proper course is to comply with the decision - which is after all only an interim solution - and resolve the dispute with finality if the losing party considers it is wrong.
- In Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418 [2005] BLR 1 Dyson LJ (as he then was) stated in paragraphs [20] to [22] that adjudicators are almost always professionally qualified and, like judges, can be assumed to be trustworthy and to approach matters with an open mind. In that case, apparent bias was claimed by the losing party, that plea being based upon the adjudicator having been previously involved in deciding an issue. The adjudicator had reached the same decision on a subsequent adjudication, his first decision having been declared a nullity. The matter was then referred to him again, and the Court of Appeal held that his second decision was enforceable. His failure to recuse himself, and the other matters relied upon by the losing party to found apparent bias, were insufficient to lead the fair minded and informed observer to conclude that there was a real possibility of bias.
- It is therefore clear that for breaches of natural justice to be sufficient to justify the court declining to order summary judgment enforcing an adjudicator's decision, they must be the plainest of cases; the adjudication proceedings must have been obviously unfair. Combing through what has occurred, or concentrating on the fine detail of the material before the adjudicator, to allege a breach of natural justice, will neither be encouraged nor permitted by the court. Adjudications are conducted very quickly, and this speed is part of the process imposed by Parliament on those who enter into construction contracts. The framework within which adjudicators have to reach decisions has to be taken into account when complaints are made by losing parties.
Discussion
- Putting the identity of the adjudicator to one side for the moment, the first factual question that arises is whether Beumer did advance factually inconsistent cases in each of the two adjudications.
- Beumer's claim in BL II was for time related damages, stated in Payment Notices, and calculated in two ways as set out in paragraph 125 of Mr Francis' witness statement. They were (i) "failure to meet the Key Date AOR estimated £35,000 per day" and (ii) "failure to meet the section Subcontract Completion Date 3 (AOR Commencement) £10,000 per day". These are time related claims, and the date for AOR forms a clear, central and obvious part of the calculation. If there were any doubt about that - and in my judgment there cannot sensibly be such doubt - it is clearly resolved by the findings Dr Chern made in his decision in BL II, in which (for example) on Issue No.3 he stated on the issue of:
"Whether substantial completion has been achieved. I find that substantial completion has not been achieved."
The date of AOR is highly relevant to substantial completion of the works. Also, on Issue No. 8 he stated on the issue of:
"Whether liquidated damages apply and if so is [Beumer] able to recover both liquidated damages and costs, I find that [Beumer] is entitled to recover liquidated damages for delay and reimbursement of its costs in completing [Logan's] works consequent to [Logan's] failure (and which excludes costs associated with delay)".
I accept that Mr Francis accurately summarises Beumer's case in BL II when he stated in paragraph 144 of his witness statement that:
"In the second Beumer-Logan adjudication, Beumer's position was that its sub-sub-contractor, Logan, had not completed all of its works to permit AOR to commence by 16 December 2015 (and…..Beumer was asserting Logan had still not reached that stage as at 12 April 2016)."
- Turning to the case that Beumer was advancing at the same time in its adjudication against Vinci in BV II, this is most starkly put in paragraph 62 of its Reply pleading in that adjudication, dated 21 April 2016, which stated the following:
"It is the case that all the works of [Beumer] to allow AOR to commence had been completed on 16 December 2015."
That document in the adjudication was not settled by Mr Curtis QC, who appeared for Beumer on this application. Mr Curtis QC was not instructed in any of the adjudications, and did not take any part in them. It was not settled by counsel at all, but by the solicitors acting for Beumer in BV II. It was put in issue by Vinci, and again this is not in real doubt, but any doubt would be resolved by the Vinci Rejoinder in BV II which in paragraph 7.2.2 stated:
"More importantly, the suggestion that Beumer's sub-contract works were AOR ready in December 2015 is clearly factually incorrect in any event."
- Mr Curtis QC developed an interesting argument that, when looked at in context, and taking into account the later issue of the three CIs in March 2016, Beumer was not advancing factually inconsistent cases in the two adjudications. I reject those submissions. They were an attempt to work around what, in my judgment, is a stark and inexplicable adoption of two entirely different factual cases advanced by the same party at the same time, albeit in different adjudications. A central element of the dispute between Beumer and Vinci in BV II concerned delay, and this encompassed or included consideration of the date upon which the works had (or had not) achieved the condition of AOR, a stage in the works important in the contractual analysis of completion. This judgment does not make any findings about what that date was, nor could it. However, it is clear that the adjudicator was being told by Beumer in BV II that the works had reached that condition on 16 December 2015. The same adjudicator was being told by Beumer in BL II that the works had not reached that condition, even by April 2016.
- I find, therefore, that the two cases advanced by Beumer in each of the adjudications were clearly factually inconsistent.
- Mr Curtis QC submitted that even if they were, nothing flowed from that. He adopted different routes to the same answer. One was that Beumer could have argued what it chose, for example, in a mediation leading to a settlement with Logan, and nobody would have been any the wiser. Whether that is correct or not, this did not occur in a mediation, which is a consensual confidential process. It occurred in adjudication, which for all its time pressures and characteristics concerning enforceability, is still a formal dispute resolution forum with certain basic requirements of fairness. Although adjudication proceedings are confidential, decisions by adjudicators are enforced by the High Court and there are certain rules and requirements for the conduct of such proceedings. Adjudication is not the Wild West of dispute resolution.
- Another line of argument by Mr Curtis QC was that advancing two different factual cases in two adjudications does not go to natural justice at all. Mr Lewis for Vinci put the matter rather differently. He submitted that Vinci was entitled to the material before Dr Chern in BL II, as it was relevant to the issues in BV II. Had Vinci had that material, Vinci could have submitted to Dr Chern that Beumer was advancing two different factual cases concerning the correct date for AOR and this would have supported its submissions on that point.
- In other words, Mr Lewis dealt with sub-issues 1(b) and 1(d) together, on the assumption that the answer to sub-issue 1(c) was that Vinci was entitled to the material before Dr Chern in BL II.
- I take a very dim view of the propriety of behaviour where Party A says in one set of adjudication proceedings with Party B "the works were complete on 16 December 2015" and, in relation to the very same works (or at least a sub-set of the works) on the very same project states in another set of adjudication proceedings with Party C "the works are not yet complete, you are liable to pay liquidated damages". They are wholly inconsistent. The correct legal characterisation of that behaviour was not touched upon by either party before me, but I seriously doubt, for example, that a director of a company could sign a statement of truth in two sets of legal proceedings in such circumstances saying such quite different things on the same point. That alone should provide obvious direction to the industry of the type of behaviour that this constitutes.
- It is therefore necessary to consider the second issue before making findings about the correct approach upon enforcement to the advancing by Beumer of two factually inconsistent cases.
- In my judgment, Dr Chern should have disclosed to Vinci that he was acting as adjudicator on another matter, involving Beumer, at the same time as he was acting as adjudicator in the dispute between Beumer and Vinci. This is the case regardless of the fact that the other matter concerned Beumer and Logan on the same project. In my judgment, this failure to disclose his appointment led to a whole host of problems that either would not have arisen, or had they arisen during the adjudication could have been dealt with as part of that process.
- Some appointing bodies, if asked to make an appointment of an adjudicator, will enquire of the potential appointee what contact, or other matters, that person has had with either party. For example, the RICS form to Request appointment of an adjudicator states
"Adjudicators are required to disclose involvement or potential conflicts of interest to RICS prior to nomination." [emphasis added]
- The Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members at Rule 3 states:
"Both before and throughout the dispute resolution process, a member shall disclose all interests, relationships and matters likely to affect the member's independence or impartiality or which might reasonably be perceived as likely to do so."
This rule is quoted by Hamblen J (as he then was) in Cofely Ltd v (1) Anthony Bingham (2) Knowles Ltd [2016] EWHC (Comm) [2016] BLR 187 in paragraph [77], in a section from paragraph [76] to [83] dealing with disclosure generally. That case was put before me by Mr Curtis QC and concerned a successful application to remove an arbitrator. Adjudicators are not arbitrators, but in my judgment are governed broadly by the same principles so far as disclosure is concerned. Indeed, paragraph [33] of Cofely refers to the case of Eurocom Ltd v Siemens plc [2014] EWHC 3710 (TCC) [2015] BLR 1 which was a case concerning adjudication. Adjudicators are acting as impartial tribunals and although involvement in other adjudications does not of itself constitute a conflict of interest, that involvement should be disclosed.
- It is important that adjudicators should not only act, but be seen to act, fairly. It is for this reason, as an example, that unilateral telephone conversations should be avoided. As Dyson LJ (as he then was) stated in paragraph [37] of Amec v Whitefriars:
"I would accept that conversations between one party and the tribunal in the absence of the other party should be avoided. Communications should ordinarily be in writing with copies to all parties."
Coulson J declined to grant enforcement of an adjudicator's award for reasons of apparent bias in Paice and Springall v MJ Harding Contractors [2015] EWHC 661 (TCC) [2015] BLR 345 based partly on a lengthy telephone conversation between Mr Paice and Ms Springall and the adjudicator's wife, who acted as his office manager. In Discain Project Services Ltd v Opecprime Developments Ltd (No.1) [2000] BLR 402 summary judgment was refused on the basis of apparent bias, again based upon unilateral telephone conversations between one party and the adjudicator.
- If unilateral telephone calls are strongly discouraged (if not verging on prohibited) due to the appearance of potential unfairness, it is very difficult, if not in my judgment impossible, for an adjudicator to be permitted to conduct another adjudication involving one of the same parties at the same time without disclosing that to the other party. Conducting that other adjudication may not only involve telephone conversations, but will undoubtedly involve the receipt of communications including submissions, and may involve a hearing. If all that takes place secretly, in the sense that the other party does not know it is even taking place, then that runs an obvious risk in my judgment of leading the fair minded and informed observer to conclude that there was a real possibility of bias. All of this can be avoided by disclosing the existence of the appointment at the earliest opportunity.
- Mr Lewis relies upon a decision of HHJ Humphrey LLoyd QC in Pring & St Hill Ltd v CJ Hafner trading as Southern Erectors [2002] EWHC 1775 (TCC). In that case, the adjudicator had conducted an earlier adjudication between Pring and the main contractor. Pring had been engaged by Sir Robert McAlpine Ltd ("McAlpine") as a glazing sub-contractor on a new building in Cardiff. McAlpine was the main contractor. The defendant ("SE") was Pring's sub-sub-contractor. SE successfully resisted enforcement, because Pring had not disclosed to it the earlier decision of the adjudicator in the McAlpine adjudication, which the judge referred to as Adjudication No.2, and to which SE was not a party. The adjudicator himself had tried to persuade Pring to disclose this decision to SE, but Pring had refused. The judge stated in paragraph [29] that SE:
"…was right to infer that there was something in Adjudication No.2 that might have been relevant to its case in [the relevant] adjudication and of which [the adjudicator] was aware but which he did not or could not reveal…..The more material point is whether the information might be relevant to SE."
The judge also stated later in the same paragraph that the instant decision may have been affected by the adjudicator's prior knowledge which he ought to have but did not (or could not) disclose, and also that SE had not been treated fairly because the adjudicator:
"…had in effect communications with [Pring] (via Adjudication No.2) to which SE was not a party".
- Mr Lewis submits that had BL II been conducted slightly early and resulted in a decision prior to the adjudication in BV II, this authority makes it clear that Vinci would have been entitled to see the decision in BL II. The test is relevance to the issue or issues in BV II, and whether it would (or could) have affected how Vinci chose to put its case. He posed the test as being: would such an earlier decision have given Vinci the ability to make further, different, or alternative submissions which the lack of disclosure denied? I accept those submissions. If Vinci would have been entitled to see any such earlier decision in BL II, had the timing been different, I turn to consider whether the position is any different because the adjudications were commenced at the same time. In my judgment, the position is no different. If, as here, the adjudications took place at exactly the same time, then the decision cannot be provided because it did not exist. But at the very least, in my judgment, the Referral document, the Response, and so on - what are conventionally referred to as the pleadings in the adjudication - should have been provided to Vinci. This is because the disputes were so closely connected and the issues so similar. It will be a matter of fact and degree in any case (or more accurately, two cases) whether this applies, but here in my judgment it clearly does. It might be that the two adjudications were commenced by Beumer on the same day deliberately so that neither Logan nor Vinci could see that Beumer was adopting a contrary position in each adjudication. It might, however, have been simply coincidence. It is not necessary to speculate.
- Mr Lewis also relies upon London and Amsterdam Properties Ltd v Waterman Partnership Ltd [2003] EWHC 3059 (TCC) where HHJ Wilcox stated in paragraph [89] that:
"It is a fundamental requirement that any reliance upon previously acquired relevant knowledge by an adjudicator is made known to the parties to the adjudication, so that both have an opportunity to deal with it, should it be likely to or if it does in fact affect his decision materially. A professionally qualified person who is an adjudicator appointed by a body such as the RICS must be presumed to be aware of such a basic ingredient of any fair hearing which accords with the requirement of natural justice".
The requirement of natural justice to which the judge is referring is the first limb, namely a party's ability to meet the case against him. Mr Curtis QC argues that it can be seen from the two decisions in the two adjudications that Dr Chern scrupulously confined himself to the submissions before him in each adjudication. However, that submission cannot meet the argument that Vinci must be given a fair opportunity to put its own case, and an important element of that case (that Beumer was advancing a case that Logan's works remained incomplete, which supported Vinci's case against Beumer) could not be put.
- Mr Curtis QC used the Scheme, and in particular paragraph 8(1) and 8(2), by way of contrast with Option W2.3(3a) and W2.3(3b), to explain the involvement of Dr Chern in both adjudications at the same time and amplify what he called the "Amec default position" in terms of the legal ability of the adjudicator in this respect to conduct two adjudications at the same time. Option W2.3(3a) and W2.3(3b) gives the adjudicator the power to conduct adjudications between the contractor (Vinci), the sub-contractor (Beumer) and the sub-sub-contractor (Logan) at the same time, and together, if the same matter is disputed under both the sub-contract and sub-sub-contract. The consent of the sub-sub-contractor is required. Paragraph 8(1) of the Scheme contains a similar provision if disputes arise under the same contract. Paragraph 8(2) of the Scheme is relied upon by Mr Curtis QC principally. This states:
"The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on related disputes under different contracts, whether or not one or more of those parties is a party to those disputes."
Mr Curtis QC also relies, to support his argument on paragraph 8(2) of the Scheme, on the dicta in HHJ Humphrey LLoyd QC in Pring where at paragraphs [13] to [15] he considered the different contentions in that case concerning the effect of simultaneous adjudications and what "related disputes" actually meant. However, what was decided in that case was set out in paragraph [16] where the judge stated that paragraph 8(2):
"…is intended to cover all the situations in which there may be related disputes under different contracts, whether or not the parties are the same and whether or not there may permissibly be consolidation of the two proceedings".
This requires consent of all the parties, and is in any event only something that arises under the Scheme, which did not apply to these adjudications in any event. I do not consider that this argument concerning paragraph 8(2) assists Mr Curtis QC at all. Under the terms of Option W2.3(3a) and W2.3(3b), the two adjudications could have been dealt with together, if the necessary consent had been forthcoming. However, that is not what happened.
- Mr Curtis developed his argument by submitting that Vinci are, in effect, seeking to have a similar provision to paragraph 8(2) of the Scheme implied into Option W2. In other words, his submission is that Vinci's case in reality is that because Vinci did not consent, the adjudicator could not do what he in fact did (conduct two adjudications at the same time) precisely because he did not have Vinci's consent. I do not accept that Vinci are seeking to have an implied term read into Option W2. Also, with respect to Mr Curtis QC, there is a danger in considering by analogy what the Scheme does include, and applying it to Option W2 at all. Option W2 satisfies the requirements of the legislation and as such the Scheme does not apply at all. Dr Chern was entitled to conduct the two adjudications at the same time. He should however have disclosed to Vinci that he was acting on the other one between Beumer and Logan for the reasons that I have explained.
- Vinci challenges the fundamental fairness of the proceedings before the adjudicator, based partly upon the fact that he was conducting a parallel adjudication contemporaneously on similar issues involving the same project, and the same party (Beumer), and did not disclose this. It is also partly based upon the fact that, as a result of this, Vinci was not provided with the necessary material to know that this other adjudication involved Beumer advancing a factually inconsistent case on the relevant date for AOR in BL II, to that advanced by Beumer in BV II. I should also say that I would expect the result on enforcement to be the same in terms of breaches of natural justice, whether an adjudication were conducted under Option W2 or under the Scheme.
- It is entirely correct to read Amec v Whitefriars, which is relied upon by Mr Curtis QC, as stating that adjudicators can be trusted to approach matters with an open mind, and to decide disputes only on the evidence and material placed before them on that particular dispute. That is plain, in particular, from the passages in the leading judgment of Dyson LJ (as he then was) at paragraphs [20] to [22]. Further, in paragraph [21] the following is stated:
"There needs to be something of substance to lead the fair minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear."
That is dicta clearly directed at the second limb of the rules of natural justice, namely the impartiality of the tribunal. The "something of substance" here is the appointment of Dr Chern in BL II at the same time, and the conducting of that adjudication, with all that involved in terms of contact with Beumer, without notifying Vinci of that fact.
- The same approach could be said equally to apply to the first limb, namely there must be "something of substance" to found a complaint of breach of natural justice generally. That could be just another way of stating that any breach of natural justice must be material, or plain and obvious. In this case, the "something of substance" is not only the circumstances of the other adjudication, including the non-disclosure both of its existence at all, and that Dr Chern was also the adjudicator. It also includes the consequential keeping from Vinci (as a direct result of that) of the factually inconsistent case Beumer was advancing in the other adjudication. In my judgment, the fair minded and informed observer would come to the conclusion, having considered the matter with the necessary care and only taking into account relevant matters, that something had gone rather obviously wrong and that this was a plain case of breach of natural justice.
- Another important point is that Option W2.3(4) gives the adjudicator the power both to instruct a party to provide further information related to the dispute within a stated time, and to instruct a party to take any other action which he considers necessary to reach a decision. I interpret those powers as including the power to order (for example) that Beumer disclose documents to Vinci. Vinci were denied any opportunity of asking the adjudicator to exercise his power to do this in relation to Beumer's submissions or pleadings in BL II, because Vinci did not know at the relevant time that the other adjudication even existed, and so did not know that such other documents existed. Dr Chern doubtless did not order Beumer to disclose the relevant documents in the BL II adjudication to Vinci, because Vinci did not ask him to do so. In my judgment, this made the adjudication proceedings between Beumer and Vinci unfair.
- Mr Curtis QC also relied upon lack of materiality were I to find any breach, or breaches, of natural justice. BV II concerned declarations that the three CIs in question were compensation events. Paragraph 2.1.1 of Beumer's Referral states the following in terms of the subject matter of the adjudication:
"2.1.1 The matter in dispute is in relation to whether certain Contractor's Instructions constitute compensation events and their effect on the Completion Date for the Subcontract Works."
Clause 62.2 of the Subcontract states:
"62.2….compensation events comprise proposed changes to the Prices and any delay to the Subcontract Completion Date and Key Dates assessed by the Subcontractor…."
Clause 63.3 of the Subcontract states:
"63.3 A delay to the Subcontract Completion Date is assessed as the length of time that, due to the compensation event, planned Completion is later than planned Completion as shown on the Accepted Programme. A delay to a Key Date is assessed as the length of time that, due to the compensation event, the planned date when the Condition stated for a Key Date will be met is later than the planned date shown on the Accepted Programme".
There was no current Accepted Programme as at the time of BV II, but the above clauses show that the question of delay is integral to consideration of compensation events. The condition of the works therefore, and whether they were AOR ready in December 2015, was part of the factual matrix being considered by Dr Chern in considering whether the three CIs in question were compensation events.
- I fail to see in those circumstances, and given the terms in which Beumer itself framed the dispute, how it could be said that the date upon which Beumer's works were in a condition of AOR was anything other than of relevance. It is not necessary to predict with certainty what Dr Chern would have done, or what findings he would have made, had Vinci been given the opportunity to draw his specific attention to the fact that its case on this point was substantiated by Beumer's very own submissions on the very same point in BL II. It is not always easy, and may on occasion be verging on impossible, to assess the impact of any particular submission upon the thought processes of the decision making tribunal. It might very well be the case that the three CIs are compensation events. What is important is the materiality of the breach of natural justice, and the fact that Vinci was denied the opportunity of making that submission.
- Further written submissions were received from Beumer following the hearing, making the point that the first adjudication between Beumer and Vinci had made findings that were binding on the parties concerning the operation of the time machinery in the Sub-Contract. These submissions go to materiality. I therefore invited a response on this limited point from Vinci. It is clear that the first Beumer-Vinci adjudication concerned sectional completion dates, not the overall Sub-Contract completion date. Accordingly, those further submissions do not affect the materiality of the date for AOR in the second Beumer-Vinci adjudication.
Conclusion
- In my judgment, therefore, the breach of natural justice was plainly material. The question of the correct date for AOR was central to considerations of delay, and delay was central to considerations of whether instructions were indeed compensation events. The breach of natural justice is sufficiently material that the decision will not be enforced.
- Turning therefore to the different issues on this application for summary judgment set out in paragraph 11 above, the answers are as follows:
Issue 1.
(a) Did Beumer advance factually inconsistent cases in each of the two adjudications, BV II and BL II?
Answer: Yes
(b) If so, what if any consequences flow from that?
Answer: The consequences that flow are as follows. Beumer's advancing of an inconsistent case in the second Beumer-Logan adjudication could have been specifically relied upon by Vinci as supporting Vinci's own case concerning the correct date for AOR. Vinci was deprived of the opportunity of making submissions to this effect.
(c) and (d) Was Vinci entitled to be provided with any relevant material from BL II and if so, what consequences flow from the failure to do so?
Answer: Vinci was entitled to have sought an order from the adjudicator for such material. Vinci was deprived of the opportunity to do so because the other adjudication's existence was kept from it. Had such an application been made by Vinci, the adjudicator would have been likely to have ordered such disclosure in order to conduct those proceedings fairly.
Issue 2
(a) Should Dr Chern have disclosed to Vinci that he was acting as adjudicator on another matter, involving Beumer, at the same time as he was acting as adjudicator in the dispute between Beumer and Vinci?
Answer: Yes
(b) If the answer to that is No, does the fact that the other matter concerned Beumer and Logan on the same project and Beumer's works for Vinci mean he should have disclosed this to Vinci?
Answer: This does not arise
- I wish, however, to emphasise the following points. Dr Chern considered both parties' submissions in BV II with evident care, and produced a detailed and thoroughly reasoned decision. He appears to have restricted himself to the actual submissions before him in that adjudication. Although the inability of Vinci to make the submissions I have identified above constitutes a breach of natural justice, that should not be taken as constituting a criticism of Dr Chern's overall approach to the material he had before him, or the evident care with which he approached his task and made findings. I consider that he ought to have disclosed to Vinci that he had been appointed in BL II, and had he done so the situation that then unfolded would have been avoided, because Vinci would have had the opportunity to make the submissions that Beumer's case in BL II (regarding the date for AOR) supported Vinci's case in BV II. However, that is not to say that the result of this judgment means that each or any of CI 114, 115 and 116 are not compensation events. They may indeed be compensation events, and unless the parties can reach agreement, that issue will need to be resolved either by another adjudication or by final resolution.
