Evidence: In? Out? Can an Adjudicator Shake It All About?

 
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Cynthia Jacques and Elsie Jacques Grombach (t/a C&E Jacques Partnership) v Ensign Contractors Limited [2009] EWHC 3383 (TCC)

INTRODUCTION

The recent TCC case of Jacques v Ensign provides a useful summary of the Court's application of the concept of natural justice to adjudication proceedings. The decision:

Confirms that adjudicators enjoy a wide jurisdiction in considering evidence; Provides an example of the Court's discretion regarding the granting of a stay of execution; Gives a salutary reminder of the costs consequences of failing to beat a settlement offer. THE FACTS

In May 2006, the Employer, trading as C&E Jacques Partnership, engaged the Contractor, Ensign Contracts Limited, to renovate a number of flats in an apartment block in Liverpool for a contract sum of £339,000. There were a number of disputes and adjudications between the parties; the fourth adjudication concerned alleged deficiencies in the Contractor's work, claiming overpayment of £198,000. The Adjudicator's decision of October 2007 directed that the Contractor should re-pay to the Employer an overpayment of £29,000 plus VAT. The Contractor raised a series of jurisdictional objections to the fourth Adjudication decision and following a further abortive adjudication, the parties agreed to a Consent Order that the fourth adjudication decision should be declared "null and void". The fifth adjudication commenced the day after the date of the Consent Order. The dispute related, essentially, to what constituted the value of the Contractor's final account. The Employer sought re-payment of £187,000 and the Referral dated 6 August 2009 made reference to substantial defects in the works. The Contractor provided a detailed response seeking payment of £98,700 and made a number of references to the "null and void" decision in the fourth adjudication. Following the Employer's challenge to the references made to the fourth adjudication decision, the Adjudicator confirmed: "I must make my decision based on my view of the evidence and submissions as presented to me. I find therefore that the previous Adjudicator's Decision is irrelevant and therefore inadmissible as evidence and consequently I should not even read it let alone have regard to it. It is part of an Adjudicator's role to exclude inadmissible evidence from his considerations........" Predictably, the Contractor reserved its rights to subsequently challenge the decision. Further pleadings were exchanged and the Adjudicator's...

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