John Sisk & Son Ltd v Duro Felguera UK Ltd

This is an application by the Claimant (“Sisk”) to enforce a decision of an adjudicator made on 9 October 2015 by which he awarded Sisk a sum in excess of £10 million. It is resisted by the Defendant (“Duro”) on the ground that there were breaches of natural justice and/or a wrongful delegation of the adjudicator’s decision-making function.

Duro relies on three matters. First, there was a real danger that the Adjudicator approached certain issues with a closed mind. Second, the Adjudicator delegated, or at least he appears to have delegated, certain parts of his decision-making role to a third party without notifying the parties of this or seeking their consent to that course. Third, he purported to rectify or to amend the contract in circumstances where neither party had submitted that it should be rectified and without giving the parties any notice of his intention to take that approach.

The dispute arose out of a contract by which Sisk was engaged by Duro to carry out civils works at a Combined Cycle Power Plant. The Adjudicator found that the value of Sisk’s work as at 31 March 2015 was some £36 million odd. It is clear that substantial sums are in issue.

Sisk was represented by Mr Nicholas Collings, instructed by Eversheds. Duro was represented by Mr Simon Hughes QC and Mr Matthew Finn, instructed by Freeths LLP.

Duro’s Response to the Referral Notice, which was served on 24 July 2015, began with a section headed “Overview”. The first paragraph of this raised the objection that the dispute referred by Sisk arose out of more than one contract (the “threshold” jurisdiction). In the ensuing six paragraphs, it also set out four reasons why Sisk’s claims in the Referral were bound to fail (which the Adjudicator described as the “internal” jurisdiction).

In an e-mail sent later that day, at 16:58, the Adjudicator said this:

“In reading the head document and Mr Selby’s opinion I note amongst other items the challenges raised in connection with both my threshold and internal jurisdiction. At paragraph 2.1 of the Response it is noted that the Responding Party does not confer upon me jurisdiction to determine the issue. By way of clarification I take this to mean that they do not confer the power to allow me to determine the extent of my jurisdiction. That does not in my view prevent me from carrying out an investigation into the challenges made to allow me to form a non-binding view on the merits thereof. It is my intention to carry out such an investigation and accordingly I invite the Referring Party to provide its comments on the challenges by no later than 5 pm on Tuesday, 28 July 2015”.

(My emphasis)

It is to be noted that the Adjudicator referred to “challenges” - in the plural - and that these challenges were to both his threshold jurisdiction and what he called his “internal jurisdiction”. Duro’s solicitor, Mr Driver, responded by e-mail timed at 17:04 by way of annotations to the Adjudicator’s e-mail. To the end of the first paragraph quoted above he added: “I agree”. The expression “internal jurisdiction” is not one that I have come across in this context, but it is reasonably clear that what the Adjudicator meant by the challenges to it were the four points made by Duro in its Response, each of which, if good, would defeat Sisk’s claims in their entirety and therefore bring the referral to an end. Given the nature of his response to the Adjudicator’s email, I conclude that Mr Driver must have had the same understanding; or, at least, that is how the Adjudicator would reasonably have read it.

On 7 August 2015 Sisk served its Reply. This was a long document, running to over 40 pages, and dealt in detail with the points raised in Duro’s Response. In a letter dated 11 August 2015, the Adjudicator summarised the five grounds of “challenge” to his jurisdiction and then - as foreshadowed in his e-mail - dealt with them under the headings of “Threshold jurisdiction” and “Internal Jurisdiction”.

The Adjudicator concluded that the threshold challenge was not made out and he then considered the four challenges to his “Internal Jurisdiction”. He went through these, one by one, and in each case concluded that the point was not a good one. The letter concluded as follows:

“Therefore having regard to the foregoing I consider that both strands of the Respondent’s challenge to my jurisdiction are without merit and I have jurisdiction to adjudicate the referred matter. Therefore by this letter I advise the Parties that there is no good reason for me to resign and I confirm my intention to continue with this Adjudication.”

The Adjudicator sent his letter of 11 August 2015 at 11:30. In an e-mail sent later the same day, at 13:53, Mr Driver wrote:

“We are concerned by the number of issues dealt with in your letter. We aim to provide a substantive response tomorrow. In the meantime, our client’s position is reserved generally.”

The Adjudicator replied, 15 minutes later at 14:08, as follows:

“I note Mr Driver’s e-mail and will await his further communication. Whilst writing I also refer to the above noted in previous correspondence in respect of this matter on my proposed meetings with the parties and the date for reaching my decision. Having now had time to consider the submissions made I propose the following:

1.

Meeting to consider issues of liability will take place on 17 August 2015;

2.

Meeting to consider issues of quantum (which will include issues of measurement) will take place on 19 August 2015;

3.

Should the need for further submissions arise these will be made simultaneously on 24 August 2015;

4.

I shall reach my decision in this matter by no later than 9 September 2015.

I will provide details of timings, venue and an agenda in advance of both meetings.”

On Wednesday, 12 August 2015, at 11:29, the Adjudicator sent an e-mail to the parties enclosing the agenda for the meeting that was to be held on the following Monday. The first item on the Agenda was the following:

“Jurisdictional Matters

1.

Matters arising from Adjudicator’s non-binding decision on his internal jurisdiction.”

About one hour later, at 12:36, Mr Driver sent an e-mail to the Adjudicator in the following terms:

“I refer to your letter of yesterday in which we were expecting you to give your non-binding view on your jurisdiction. What follows is without prejudice to our right to argue that you do not have (and never have had) jurisdiction to deal with this matter.

As I mentioned yesterday, I was concerned by the number of additional issues you decided in that letter without having given DFUK an opportunity to address important new arguments from Sisk which were central to your decision.

Accordingly, I must respectfully as[k] you to resign forthwith as resignation is the only fair and reasonable resolution of the problem you have created.

In the circumstances, I sought counsel’s balanced view to see if he concurred with me. I am attaching for your information counsel’s written opinion. For completeness, I should say that in disclosing this advice I am not waving privilege in relation to any other privileged communications beyond this document. Counsel’s advice is clear.

In conclusion, counsel is of the view that:

1.

When viewed from the perspective of a fair-minded observer, you have in this case done the very thing that the Court of Appeal said was unacceptable in Lanes v Galliford Try (supra) and reached final decisions on a variety of legal points; and

2.

This constitutes a breach of natural justice and, given the importance of the points being determined, it is evidently highly material. It is unlikely that any award that is now made in this Adjudication would be enforceable.

I share counsel’s hope that, when given the chance to reflect, you will recognise that you have acted too hastily in deciding these points without seeking further submissions from DFUK and that there is no way of completely curing this problem other than by stepping aside and allowing another to resolve this dispute.

I should be grateful if you would please give this matter your urgent attention and resign forthwith.”

I am not very impressed by Mr Driver’s assertion that Duro had not been given an opportunity “to address important new arguments from Sisk”. I assume that the arguments to which he was referring were those advanced in Sisk’s Reply. If Mr Driver wanted to put in a response to that Reply before the Adjudicator made his (non-binding) decision on jurisdiction, he could have done so and, if necessary, asked the Adjudicator for further time in which to do it. He did neither. I note from counsel’s Advice, a copy of which is in the papers, that after receiving Sisk’s Reply the Adjudicator sent the parties an e-mail saying that he would consider it over the week-end and communicate his decision the following Monday (10 August). In fact, Duro served a Rejoinder on 14 August 2015 in which it responded to the points made by Sisk in relation to the challenge to the Adjudicator’s jurisdiction. That document ran to 6-7 pages. It was, therefore, served before the meeting to discuss liability issues which, at the time, had been fixed for Monday, 17 August 2015.

What this sequence of events shows is that, almost as soon as he read the letter of 11 August 2015, Mr Driver reached the conclusion that the Adjudicator had pre-determined the “internal jurisdiction” issues. He immediately instructed counsel (in order to see whether “he concurred with me”). By the time Mr Driver sent his second e-mail of 12 August he had received the Adjudicator’s e-mails of 11 and 12 August – the second of which enclosed the agenda, with its reference to a discussion of the matters arising out of the Adjudicator’s non-binding ruling on the questions of internal jurisdiction. It is a fair inference that neither of these e-mails had been seen by counsel when he wrote his advice.

It seems to me that, as far as Mr Driver was concerned, the Adjudicator’s letter of 11 August 2015 provided material for a fresh attack on the referral which he was determined to exploit. This could only be a legitimate approach if the pre-determination question is one that has to be answered on the basis of the Adjudicator’s letter alone, without taking any subsequent events into account. That is a matter of law to which I will turn later in this judgment.

Later the same day the Adjudicator replied to Mr Driver’s e-mail of 12 August. He said that it was “legally and factually incorrect” that he had reached a concluded view on the issues and that it had always been his intention to address them at the forthcoming meeting, and that he had made provision in his directions for further submissions from the parties if they were required.

The Adjudicator did not resign and the referral continued.

In the event the meeting scheduled for 17 August 2015 did not take place. Instead, the meeting to discuss points in relation to liability took place on 1 September 2015. Shortly before that meeting, by a letter of 27 August 2015, Sisk’s representatives wrote to the Adjudicator to say that in their opinion Duro’s challenge to his jurisdiction was misplaced and that the referral should continue. On 3 September 2015 there was a second meeting to consider matters in relation to quantum and measurement. Thereafter, the Adjudicator invited further submissions from the parties on matters arising out of the meetings and these were to be provided and exchanged on 10 September 2015. Each party was given a further seven days in which to respond to the submissions served by the other. The Adjudicator issued his Decision on 9 October 2015.

The four challenges to the Adjudicator’s “internal jurisdiction” were the following:

In the Adjudicator’s Decision, under the heading “THE ISSUES TO BE DECIDED”, he summarised the matters that “remain to be decided”. These included the four challenges to his “internal jurisdiction” that I have set out above and which had been raised in Duro’s Response. What he said, at paragraph 5.1, was this:

“Having considered the nature of the dispute and upon all the information provided to me by the Parties through the various submissions, I set out the issues that remain to be decided in this Adjudication.”

At paragraphs 8.67 to 8.79 of the Decision the Adjudicator considered whether or not there had been an agreement as to the value of Sisk’s work up to 31 August 2014 and he concluded, consistently with the conclusion in his letter of 11 August 2015, that there had been no such agreement. He said that he found the position as set out by Sisk to be more compelling than that of Duro and that, in addition, in later applications Duro sought to amend the alleged agreement which was clearly inconsistent with the parties having reached a binding agreement as to the value of the work as at 31 August 2014.

At paragraphs 8.80 to 8.95, the Adjudicator considered the clause 22 point. The Adjudicator described the process set out in clause 22 as one which envisaged that the parties would endeavour to reach agreement on the disputed elements and, only if the parties fail to reach such an agreement, would the parties have to give a notice as required by the clause. For the reasons that he gave in more detail in the Decision, the Adjudicator concluded that the clause 22 process had not come to an end, in spite of the referral, and so the obligation to give the relevant notice under clause 22 had not arisen. Again, this conclusion was consistent with the conclusion set out in the letter of 11 August 2015.

At paragraphs 8.97 to 8.122 the Adjudicator considered whether payment was conditional upon the issuing of an invoice by Sisk. He began by observing that, as a matter of fact, Sisk could not issue an invoice in respect of disputed items. At paragraph 8.110 the Adjudicator referred to the fact that he had considered this point in his letter of 11 August 2015. Then he said this:

“8.111

At that time I considered the challenge that the need for an invoice prior to payment was inappropriate as it was my view that the provisions contained in the Contract were noncompliant.

8.112

However after full submissions were received and taking into account the further information provided by both parties I consider that the payment provisions in part fall foul of the Act but can be remedied by implying terms from the Scheme.”

In the following ten paragraphs he considered the arguments put forward by each of the parties and concluded, at paragraph 8.122, that where Sisk was entitled to payment of the sums determined in the adjudication, such payment was not conditional on the issue of an invoice.

At paragraphs 8.123 to 8.132 the Adjudicator considered the cumulative valuation point. Duro’s case, if I have correctly understood the summary of it given by the Adjudicator at paragraph 8.123, was that whilst it was acceptable in principle for an Adjudicator to be asked to determine certain elements of a cumulative valuation (and for those figures then to be “inserted into” any subsequent cumulative valuation), it was not acceptable for an Adjudicator to award payment of those individual sums without taking into account the value of the works as a whole (“the cumulative valuation”) at the relevant point in time.

The Adjudicator described Duro’s contentions as to the cumulative valuation point as “vague and unparticularised”. At paragraph 8.128 he described how he had addressed this point with the parties at the meeting on 1 September 2015, when he told them that he was aware of a judgment of Coulson J that he thought to be in point, copies of which he gave to the parties at the meeting. Both parties were then invited to make, and made, submissions in the light of that judgment. At paragraph 8.131 of the Decision the Adjudicator cited two paragraphs of the judgment and then went on to conclude that, in the light of them, he rejected Duro’s argument.

Both parties were agreed that the question for the court is whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of predetermination. What is meant by predetermination was explained by Beatson J in R on the application of Persimmon Homes Ltd v Vale of Glamorgan Council [2010] EWHC 535 (Admin) as follows:

“Predetermination is the surrender by a decision-maker of its judgment by having a closed mind and failing to apply it to the task. In a case of apparent bias, the decision-maker may have in fact applied its mind quite properly to the matter but a reasonable observer would consider that there was a real danger of bias on its part. Bias is concerned with appearances whereas predetermination is concerned with what has in fact happened.”

In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, a decision of the Court of Appeal, it was held that the expressions “a real possibility” and “a real danger” meant the same. In delivering the judgment of the court Lord Phillips MR (as he then was) cited the following passage from the judgment of Simon Brown LJ in R v Inner West London Coroner, Ex p Dallaglio [1994] 4 All ER 139, at pages 151-152:

“From R v Gough I derive the following propositions: (1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusions on the facts. (2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of “justice [not] manifestly and undoubtedly be[ing] seen to be done”, may, following the court’s investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger. (4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By “real” is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.”

In that case the court considered material that was not known to the appellants when they made their initial challenge of bias. It is clear, therefore, that the court considered all the relevant circumstances that would have been known to the fair-minded observer at the time when it had to decide the issue.

In Amec Capital Projects v Whitefriars City Estates [2004] EWCA Civ 1418, in which Dyson LJ gave the only judgment, he said this, at paragraph 20:

“In my judgment, the mere fact that the tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias. Something more is required. Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons. That is not to say that, if it is asked to redetermine an issue and the evidence and arguments are merely a repeat of what went before, the tribunal will not be likely to reach the same conclusion as before. It would be unrealistic, indeed absurd, to expect the tribunal in such circumstances to ignore its earlier decision and not to be inclined to come to the same conclusion as before, particularly if the previous decision was carefully reasoned. The vice which the law must guard against is that the tribunal may approach the rehearing with a closed mind. If a judge has considered an issue carefully before reaching a decision on the first occasion, it cannot sensibly be said that he has a closed mind if, the evidence and arguments being the same as before, he does not give as careful a consideration on the second occasion as on the first. He will, however, be expected to give such reconsideration of the matter as is reasonably necessary for him to be satisfied that his first decision was correct. As I have said, it will be a most unusual case where the second hearing is for practical purposes an exact rerun of the first.”

He went on, at paragraph 21, to say that

“the mere fact that the tribunal has decided the issue before is therefore not enough for apparent bias. 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.”

And finally, at paragraph 22:

“It is easy enough to make challenges of breach of natural justice against an adjudicator. The purpose of the scheme of the 1996 Act is now well known. It is to provide a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement. The intention of Parliament to achieve this purpose will be undermined if allegations of breach of natural justice are not examined critically when they are raised by parties who are seeking to avoid complying with adjudicators’ decisions. It is only where the defendant has advanced a properly arguable objection based on apparent bias that he should be permitted to resist summary enforcement of the adjudicator’s award on that ground.”

Although in places Dyson LJ refers to apparent bias, this was clearly a case where the allegation was one of predetermination. The adjudicator in question had already decided the issues in dispute but, owing to a defect in the procedure for his appointment, he had no jurisdiction and so his decision was a nullity. He was then appointed for a second time in respect of the same dispute and the challenge was on the basis that he had already decided the issues so that there was a real danger that he would approach the second adjudication with a closed mind.

Duro relied strongly on the decision of the Court of Appeal in Lanes Group plc v Galliford Try infrastructure Ltd [2011] EWCA Civ 1617, particularly because it involved the decision of an adjudicator and is one of the most recent authorities on this topic. That was another case in which an adjudicator’s jurisdiction was challenged. About four days after the respondent, Lanes, was due to serve its Response (but had not done so), the adjudicator issued a document entitled “Preliminary Views and Findings of Fact” (“the Preliminary View”), which he described as “a step in making my Decision” and of which he said, in relation to his findings, “I am not bound by them”. In due course both parties submitted comments and submissions in relation to the Preliminary View. The principal judgment in the Court of Appeal was delivered by Jackson LJ. He referred to various authorities, including In re-Medicaments and Amec Capital Projects, to which I have already referred, and Porter v McGill [2001] UK HL 67 and Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731. I do not need to refer to the last two cases because the fair-minded and informed observer test which they lay down was not in issue before me, as I have already indicated at paragraph 26 above.

As will be evident from the discussion in the next section of this judgment, the point which in my view is at the heart of this part of the case is the question of the stage at which the issue of bias or predetermination has to be addressed. There was no discussion about that in Lanes v Galliford Try. It is right to note that the Court of Appeal appears to have decided the case primarily on the contents of the Preliminary View, which might go some way to supporting Duro’s case (as summarised in paragraph 37 below), but it is clear from the facts of that case that the court did not need to go any further. The question could be and was answered on the basis of the Preliminary View alone. In my judgment, that decision provides very limited assistance on the question of the stage at which the question of bias or predetermination has to be decided. Certainly it says nothing to contradict or undermine the earlier decisions which I have cited.

The adjudicator described the conclusions that he reached in his letter of 11 August 2015 as being a “non-binding opinion”. The purpose of reaching those conclusions was for him to determine whether or not he had jurisdiction to continue the referral. He decided that he did. At no stage did he indicate that he would not entertain further submissions on the same points. Indeed, it seems that he did so, both at the meeting held on 1 September 2015 and in the submissions that he directed the parties to make thereafter.

Whilst it is true that in his Decision he reached the same conclusion on each ground as in his letter of 11 August 2015, that is not altogether surprising for the reasons given by Dyson LJ. However, in my view the way in which he went about approaching his Decision, particularly in the paragraphs to which I have referred, shows that he was not only willing to, but did in fact, consider the matter afresh. Duro had every opportunity to present the arguments that it wished and obviously did so.

Mr Hughes submitted that the position was to be judged at the time of receipt of the letter of 11 August 2015. In the light of the way in which the Adjudicator approached his Decision, Mr Hughes had, perhaps, little option but to take this position. However, it is clear from the authorities that the circumstances have to be considered at the time when the matter comes before the court, so that all the circumstances which by then would be known to a properly informed and fair-minded observer fall to be taken into account. But, as a matter of common sense, it would in my view be quite artificial not to consider the manner in which the Adjudicator went about reaching his Decision when deciding whether or not there was a real danger that he had approached the issues with a closed mind.

For these reasons, therefore, this ground for challenging the Decision fails.

Mr Chris Hutchinson is a Quantity Surveyor with about 25 years experience in the construction industry. He is also a qualified lawyer. He is a Member of the Chartered Institute of Arbitrators and of the RICS. The Adjudicator is a Fellow of both institutions. Mr Hutchinson is not an adjudicator, although he acts as a party representative in adjudications. He practices as a self-employed consultant.

I have already mentioned that the Adjudicator held two meetings with the parties. The second of these, on 3 September 2015, was to deal with issues of quantum. This was attended by representatives from the parties, the parties’ solicitors (at junior level) and, in Duro’s case by its expert quantity surveyor, Mr Greg Brownlee of Blake Newport.

For the purposes of this application Duro put in two witness statements of a Ms Jennie Matthews, who described herself as an Associate Solicitor who had started working for Freeths on 17 August 2015. Her first involvement in the dispute was when she attended the first meeting on 1 September 2015. She also attended the second meeting on 3 September 2015. The other lawyer who attended that meeting on behalf of Duro was a Mr David Lorenzo, also of Freeths. He was described as a “European Lawyer” who was retained as a consultant by Freeths and who would “be attending to assist [Mr Redondo, Duro’s Contracts Manager] with any language issues”. Ms Matthews makes it clear in her first witness statement that she was new to the firm and was there “to gain experience of the case and to take a note of the proceedings”.

Ms Matthews said that when she joined the meeting on 3 September 2015 she was introduced to Mr Hutchinson with the words “This is Chris”. She says that no explanation for his presence was given to her and it seems that neither she nor anyone else on behalf of Duro asked for any such explanation. Her impression of his role was that he was not just an observer or note taker “but seemed to be asking some questions of aspects of the account”. Further, she said that at times the Adjudicator seem to be reliant on Mr Hutchinson for information.

It seems that no one on Duro’s side raised any comment about the involvement of Mr Hutchinson until 27 October 2015 - over two weeks after the Adjudicator had issued his Decision and nearly two months after the meeting on 3 September 2015. This comment was by way of an e-mail from Mr Driver to the Adjudicator, saying that it had been brought to his attention that the Adjudicator had been “assisted (at least) at the experts’ meeting by a gentleman called Chris Hutchinson”.

The Adjudicator replied to this email on 28 October 2015 in the following terms:

“Mr Hutchinson assisted me on the day of the measurement meeting by taking a note for me in order that I could concentrate on the matters in issue. At other times he also did certain items of checking and research into matters that I directed he review on my behalf. I have made no charge for his involvement for the time he worked on this application.”

At some point after this Freeths examined the metadata for the Excel spreadsheets which were included as part of Appendices 1 and 2 to the Adjudicator’s Decision. In each case Mr Hutchinson was shown as the creator of the document and as the person by whom it was last modified. On the basis of this information but, so far as I can tell, very little else, Duro contends that Mr Hutchinson must have been engaged by the Adjudicator as an expert or an assessor in relation to these documents. It therefore contends that the adjudicator wrongly (and without the consent of the parties) delegated part of his role as a decision-maker to Mr Hutchinson or, alternatively, that his failure to notify the parties that he intended to do this was a breach of natural justice.

In an attempt to clarify the position in relation to Mr Hutchinson’s role, Eversheds, who did not act for Sisk in the adjudication, sent an e-mail to the Adjudicator on 18 November 2015 asking him to respond to various questions that had been raised on behalf of Duro. In a lengthy attachment to his e-mail in reply, sent on 19 November 2015, the Adjudicator made the following points:

Duro relies in particular on the facts that Mr Hutchinson had been “asked to produce several of the spreadsheets making up the Decision” and that Mr Hutchinson had trawled through the various submissions and compiled them into like items for the Adjudicator’s consideration. Duro appears to challenge - as being “rather unlikely” - the Adjudicator’s statement that the spreadsheets produced by Mr Hutchinson were derivatives of Appendix 7 produced by “filtering, cutting and pasting” information from Appendix 7.

In a supplemental Note dealing with the appendices to the Adjudicator’s Decision, Duro submitted that Appendices 1 and 2 “plainly contain significant elements of the substance of the Decision overall”. Duro points to various comments and notes contained in the spreadsheets in Appendices 1 and 2. In the light of these Duro contended that:

“(i)

Plainly, the assessments within Appendices 1 and 2 have guided, and produced, the conclusion stated in financial terms in Appendix 7. Not the other way round as the Adjudicator suggests.

(ii)

Given Mr Hutchinson’s undoubted involvement in Appendices 1 and 2, it is unclear what role the Adjudicator played in these Appendices. The Adjudicator describes his role in these Appendices as him having “. . . populated . . .” them.

(iii)

We know that Mr Hutchinson gathered together “. . . like items . . .” within Appendices 1 and 2. There is a lot of “cut and paste” work within the “NOTES” column in Appendices 1 and 2 and it seems very likely that this was done by Mr Hutchinson.”

I can see no basis whatever for doubting the Adjudicator’s statement that he asked Mr Hutchinson to produce spreadsheets that assembled similar items of work from different areas of the project so that the Adjudicator could deal with all similar items in a consistent manner. It is clear from the spreadsheets in Appendix 1 that this has been done. In my judgment, that exercise is simply one of assembling information in a particular order: it does not involve any decision-making (save at the very mundane level of deciding which items should be grouped together).

Appendices 1 and 2 to the Adjudicator’s Decision contain a mixture of Excel spreadsheets and narrative analyses. I assume that the latter are Word documents: so far as I am aware, there is no suggestion that any of these documents were created or modified by Mr Hutchinson. The notes on which Duro rely that can be seen on the spreadsheet at B4/788-789 (which relates to pipework) appear to be based on the analysis in the Word document, which starts at B4/847, at B4/867. (Footnote: ¹) Accordingly, it appears to me that it is the Adjudicator’s analysis that has driven the figures allowed in the “Adjudicator’s Value” columns of the spreadsheets.

The position is exactly the same in relation to the wording that appears in the final column of the spreadsheet at B4/796-808. The Adjudicator’s analysis that gives rise to this wording is at B4/849-851. A similar comment applies to the allowances mentioned on B4/822-823: see B4/857-858.

The pattern appears to be the same for Appendix 2. Duro relies on the Notes that appear in the spreadsheets from page B4/885 onwards. Taking pages B4/885-886 as an example, the basis of the assessments in the “Notes” column can be found in the analysis of the various heads of claim that begins at page B4/869, in this particular case at page B4/869 itself.

The Adjudicator has explained that the spreadsheet at Appendix 7 was based on a spreadsheet prepared by Sisk summarising its claim. I am not clear whether or not the columns headed “DF UK” were part of the original spreadsheet or were added by the Adjudicator or Mr Hutchinson: in Duro’s favour, I will assume the latter. However, this would have been a mechanical exercise of extracting the relevant figures from Duro’s Response, or some other document produced by Duro in reply to Sisk’s interim application. The next two columns headed “Variance” I take to have been added by either the Adjudicator or Mr Hutchinson (although it is possible that they may have been included by Sisk in the original document). The figures in those columns are simply a product of arithmetic. The next two columns, “Items to be decided in this Adjudication”, identify those items in Sisk’s original schedule that are in dispute and were referred to adjudication by Sisk (not all items in its interim application were referred to adjudication - that in itself giving rise to a separate issue in relation to the Adjudicator’s jurisdiction, which I have already mentioned). The final three columns, “Adjudicators Use”, contained the Adjudicator’s decision in relation to each of the disputed items referred to him.

I accept that the figures that now appear in the last three columns of Appendix 7 are in many cases the result of the conclusions reached in Appendices 1 and 2, but this seems to me to be consistent with the explanation given by the Adjudicator. Appendices 1 and 2, when first created, consisted of data abstracted from Appendix 7 in its original form and then reorganised in the way that the Adjudicator has described. For the reasons given in the narrative section of each appendix, the Adjudicator’s conclusion in relation to each item was then inserted into Appendix 1 or 2. It seems that those figures were then brought back into Appendix 7 and inserted into the columns headed “Adjudicators Use”.

I can find no evidence whatever that any material decision or valuation was taken by Mr Hutchinson, rather than by the Adjudicator: on the contrary, the documents are entirely consistent with the Adjudicator’s explanation that Mr Hutchinson’s role was that of a data handler and manipulator and a general administrative assistant. Mr Driver and Ms Matthews, in their witness statements, have in my view jumped to unsustainable conclusions without, it seems, having carried out any proper analysis of the documents. In any event, it is difficult to place any weight on the opinions expressed by Ms Matthews in the absence of any information as to her previous experience of adjudication. It is not clear whether she joined Freeths as a recently qualified solicitor or whether she came from another firm and had significant experience of adjudication. In the absence of any such information, there is no basis for assuming that she does have the relevant experience.

At paragraph 8(i) of Duro’s Note on the Appendices it is said that:

“We know that B2/300 was drafted by Mr Hutchinson, or was based on an undisclosed draft by Mr Hutchinson. However, B2/300 is fundamentally evaluative in nature: it asked questions that the tribunal would or might ask.”

B2/300 is an e-mail from the Adjudicator to the parties dated 3 September 2015 in which he set out 10 questions which he wanted the parties to answer. Before considering the submissions about this e-mail in detail, I would observe that there is a great deal of difference between the document being drafted by Mr Hutchinson and sent to the parties by the Adjudicator without any consideration or amendment, and the document that was sent to the parties by the Adjudicator being one that he had drafted based on the note prepared by Mr Hutchinson. Even if the former is objectionable, which I regard as open to question, I cannot see any basis for an objection to the latter. Thus, since this submission is put in the alternative, it does not take Duro very far.

In his e-mail dated 28 October 2015 in response to Mr Driver’s query about Mr Hutchinson’s role at the meeting on 3 September 2015, the Adjudicator said that Mr Hutchinson assisted him by “taking a note”. In the attachment to the Adjudicator’s e-mail of 19 November 2015, he gave the account that I have already set out in paragraph 44 above. The words “this became my note to the parties” do not mean, at least to my mind, that the Adjudicator simply cut and pasted Mr Hutchinson’s note word for word and inserted it in an e-mail that he then sent to the parties. I consider that they are equally consistent with the fact that Mr Hutchinson’s note formed the basis of the questions set out in the Adjudicator’s subsequent e-mail. In fact, as the Adjudicator later clarified, he drafted the 10 questions himself (see paragraph 57 below).

The Adjudicator’s e-mail of 3 September 2015 began as follows:

“As I stated at my meeting with the parties on Tuesday this week I confirmed that should matters arise within my meeting to discuss measurement related (sic) items impinging upon liability I would refer this back to the party representatives for further consideration and submission. The meeting now having reached its conclusion, the following questions arise. In some cases I acknowledge that the questions posed below may relate to secondary positions taken in submissions and in turn when I conclude my view on the primary positions these matters may become redundant.”

There followed the series of 10 questions, which were in a different font, and the e-mail then concluded (reverting to the original font) by saying that the Adjudicator would provide further directions in a separate communication.

Duro’s reaction to this e-mail was to suggest that the 10 questions must have been drafted by Mr Hutchinson because they were in a different font (see the second witness statement of Ms Matthews, at paragraph 9, dated 28 November 2015). The Adjudicator explained that the reason for the two different fonts was that the default font for his e-mails (Calibri) was different from the default font used in his documents (Palatino Linotype). In response to a further e-mail from Eversheds dated 27 November 2015, the Adjudicator said that he drafted the questions after consultation with Mr Hutchinson at the conclusion of the meeting on 3 September 2015. This draft was in the form of a Word document. He said that he then cut and pasted the 10 questions into the e-mail which is why they appeared in a different font. From my examination of the documents that appears to be correct - it is certainly plausible. The font in which the questions appear in the e-mail of 3 September 2015 is exactly the same as the font used in the attachment to the Adjudicator’s e-mail of 19 November 2015 (as Ms Matthews could have seen for herself if she took the trouble to check).

But even if the questions set out in the Adjudicator’s e-mail of 3 September 2015 had been wholly or largely drafted by Mr Hutchinson, there would have been no reason to assume that the Adjudicator simply transferred them into his e-mail without considering them and concluding, for himself, that they were appropriate questions to ask. But, in any event, they were only questions: the Adjudicator was not thereby obliged to treat the answers as relevant information.

Stepping back for a moment and looking at the position overall, I have to say that the more that I have examined Duro’s submissions in relation to the role of Mr Hutchinson, the less compelling I have found them to be. The Adjudicator had to assimilate within the very short timescale allowed in an adjudication information that was in some 20 lever arch files. Without the assistance of someone who could assemble and manipulate the data in a manner that made the figures manageable, the Adjudicator’s task would have been almost insuperable. I find it surprising that the court has been given no explanation for the delay of almost two months that elapsed after the meeting of 3 September 2015 before Freeths raised the question of Mr Hutchinson’s involvement in the adjudication. It seems extraordinary that no one in Duro’s camp asked about his role unless, of course, it had been explained at the outset of the meeting on 3 September 2015 as the Adjudicator has described. Adjudication is a private and confidential process and so, if there was an outsider at that meeting whose position and role was not explained, I find it hard to believe that Duro’s representatives, Mr Brownlee in particular, would not have asked what he was doing. Further, I would have expected Ms Matthews to have mentioned it to Mr Driver - particularly in the light of what she has now said about her impression of Mr Hutchinson’s role at the meeting. To say the least, the picture painted by Duro’s evidence is unsatisfactory.

In these circumstances, Duro has come nowhere near persuading me that any relevant part of the decision-making process was delegated to Mr Hutchinson. Regrettably, it appears that Duro is effectively challenging the honesty of the Adjudicator’s responses to the questions put to him without having any reasonable justification for doing so. I see no reason why the Adjudicator should disclose the number of hours worked by Mr Hutchinson or the rate he has charged the Adjudicator for carrying out that work: neither piece of information would assist one to form a view as to whether or not Mr Hutchinson played any part in making the relevant decisions.

For all these reasons, I consider that Duro’s challenge to the Adjudicator’s Decision on the basis that he delegated some of the decision-making process to Mr Hutchinson - even when taken at its highest - is without any merit and therefore fails.

At paragraph 58 of his first witness statement, Mr Driver, summarised Sisk’s claim in the Referral as follows:

“By paragraphs 73 to 76 of that Valuation Report, Sisk contended on the proper interpretation of the Contract, it was entitled to £3,497,604.30 in respect of the provision of concrete, essentially on the basis that the rates specified against MTO items 5.01 and 5.03 were only for the placing concrete, and that as such Sisk was entitled to charge Duro the rates specified against MTO item 5.05 in respect of the provision of such concrete.”

He went on to say that Duro had contended in its Response that Sisk’s position was based on a misconceived interpretation of the Contract. In a report prepared for the adjudication dated 14 August 2015, and served with the Rejoinder, Blake Newport (“BN”), contract management consultants retained by Duro, said this:

“2.15

Paragraph 28 - Sisk rely on legal arguments to undermine the BN analysis of the cost of the concrete claimed by Sisk post September 2014 which shows such costs are in fact consistent with the rates at items 5.01 and 5.03 thus illustrating that Sisk are using an error in the MTO as a windfall against the concrete measures by claiming quantities against item 5.05.

2.16

Paragraph 31 - If this document is correct and [Duro] knew that they were going to have to pay extra for the provision of concrete it does not explain why it took Sisk 2 years to make such a claim and why they have claimed the rate of £130.33 per m³ when at the “exclusions” document has rates circa £77-£78 m³. This results in an overpayment to Sisk of circa £1.5m.

2.17

Paragraph 35 - Sisk are wrong and if in fact, which is denied, they are entitled to be paid for the provision of concrete there should be a new rate agreed by the parties, see above. It is incorrect for Sisk to use an invalid rate in the concrete which provides them with a significant over-recovery against this item. It is also noted that they do not appear to have advised [Duro] that in error they did not claim the provision of concrete for 2 years rather they include an item at £3.5m in their March Application submitted in June 2015.

. . .

2.20

What is obvious is that whilst Sisk note the rate BN have proffered for the supply and placing of concrete they have not offered an alternative rate based on first principles. This is because presumably to do so would confirm that their incorrect use of Item 5.05 provides them with a significant windfall which [Duro] aver they are not entitled to.

2.20

Paragraph 49 - we are not saying that Sisk should not be paid for the provision of concrete. What we are saying is that the provision of concrete was included in items 5.01 and 5.03.”

This part of Duro’s challenge is based on the Materials Take Off document, which formed part of the Contract. The relevant parts of it are set out in the table below: (Footnote: ²)

It is common ground that items 5.02 and 5.03 concern rates for reinforced concrete and that, up to Interim Application No 14, Sisk’s applications for payment for the provision and placement of reinforced concrete treated the rates for items 5.02 and 5.03 as if they included both provision and placement. However, Sisk then changed its position and contended that the rates at items 5.02 and 5.03 were for placing the concrete on site only and did not include the provision of the concrete itself. There is some logic in this in the sense that reinforced concrete is a product that is created on site by the pouring of concrete into a void which contains steel reinforcement. When the concrete has cured the result is reinforced concrete. It is therefore not something that is brought to site in the lorry, unlike either the concrete itself or the steel reinforcement bars.

In fact, the position adopted by Sisk was, to a significant extent, supported by Duro’s Procurement Officer, Luis Javier Arteaga, who prepared a witness statement dated 16 November 2015 in opposition to Sisk’s application for summary judgment. At paragraphs 10-14 of this witness statement he said this:

“11.

MTO items 5.01 and 5.04 refer to mass (i.e. standard) concrete. This type of concrete is not reinforced and it would normally be used as cover.

12.

MTO items 5.02 and 5.03 refer to reinforced concrete (i.e. concrete including steel rebar).

13.

By reference to CESMM3 MTO items 5.01 to 5.04 inclusive refer to the placing of concrete (i.e. not the supply/provision). In the adjudication, Sisk argued that they were entitled to additional payment for the supply.

14.

By reference to CESMM3, MTO item 5.05 refers to the provision (i.e. the supply) of concrete but 5.05 only refers to standard mix and not reinforced concrete. Accordingly, the MTO does not provide a rate for the provision/supply of reinforced concrete (only a rate for the provision of standard concrete).”

These paragraphs effectively set out the problem that the Adjudicator was being asked to resolve. As Mr Arteaga pointed out in his witness statement, this was a re-measurement contract: that is to say Sisk was to be paid for the work actually carried out (whether more or less than the estimated amount) at the rates agreed in the Contract. Clause 5.2 of the Contract provided that this was to be

“determined by means of the unit price table set out in Appendix No I.1 applied to the volumes of that variation in accordance with the theoretic measurement on drawings according to the method of measurement CESMM3 [as modified by Appendix No. I. 1] provided always that the varied work to be valued is similar in nature and character to that of the work described in the unit price table otherwise appropriate unit rates shall be agreed.”

However, there had been no agreement in relation to the provision of structural concrete.

In short, Duro contended that, in the absence of an agreed rate for structural concrete, it must be inferred that the rate at items 5.02 and 5.03 included the provision of the concrete as well as the placement of it in situ. This contention was, of course, in contrast to the way in which those items were usually understood - as explained by Mr Arteaga in the passage quoted above. Sisk, by contrast, contended that in the absence of a rate for structural concrete, the only available rate for the provision of concrete was that in item 5.05 and so it was entitled to be paid at that rate for the supply of the concrete.

In his Decision, at paragraphs 8.8-8.12, the Adjudicator said this:

“8.8

Concrete supply: The parties disagree over the re-measurement of the works concerning the provision of concrete. The question to be addressed therefore is; how does the Contract deal with the provision of concrete.

8.9

Sisk’s summarised position is that there is an MTO item (5.05) which provides for the provision of concrete. Accordingly Sisk has remeasured this item in line with the Contract.

8.10

The alternative position, again summarised, from Duro is that Sisk are seeking to gain an advantage due to an MTO technical error as the rate for placing of concrete includes is provision. Consequently Duro has valued this as £nil.

8.11

It is clear from inspection of CESMM3 that the method of measurement requires a distinction for measurement purposes between provision and placing of concrete. On analysis of the principles and elements embodied within the Contract it is evident that no items exist within the MTO for the provision of concrete for the works, save for item 5.05 which is not structural concrete provision.

8.12

Accordingly the MTO has not been prepared in accordance with the principles of CESMM3 and therefore needs to be corrected. Accordingly I find that there is a requirement to correct the MTO deficiency for structural concrete provision.”

Although the Adjudicator used the verb “to correct” at paragraph 8.12, in my view he was doing no more than adopting Sisk’s case, which was to use the rate in item 5.05 in the absence of any other rate for the provision of concrete. He was filling the gap in the table in the way that Sisk had asked him to. Both parties had approached the issue as a matter of construction of the contract and in my view that is what the Adjudicator did also.

Faced with Sisk’s case it would have been open to Duro to advance, as an alternative case, an argument to the effect that adopting the rate in item 5.05 would be far too generous to Sisk and that the Adjudicator should adopt an appropriate rate, possibly by way of rectification of the contract. However, Duro did not do this. It chose to leave the Adjudicator with the stark choice of either using the rate at item 5.05 or giving Sisk no additional amount for the provision of the structural concrete. It is clear from the evidence of Mr Brownlee that this was a tactical decision taken by Duro in the belief that the Adjudicator would probably accept its submissions.

In my judgment, the Adjudicator did no more than accept the case advanced by Sisk, which had been addressed by Duro in its submissions: this was something that he was entitled to do in the light of the way in which the arguments had been presented to him. Duro had every opportunity to meet the case being advanced by Sisk which it understood perfectly well. There was no breach of natural justice.

In the light of the conclusions that I have already reached, it is not necessary for me to consider this argument. It was set out in paragraphs 43-48 of Sisk’s skeleton argument, but was not dealt with by Duro in its skeleton argument. Since there was not enough time at the hearing for Mr Collings to make any oral submissions on this aspect, I gave him leave to put in supplemental submissions in order to amplify the points made in his skeleton argument. Duro put in submissions in response on 14 December 2015.

Mr Collings has referred me to the judgments in Banque des Marchands de Moscou v Kindersley [1951] Ch 112; R Durtnell & Sons v Kaduna Ltd [2003] EWHC 517 (TCC); and Amec Group Ltd v Thames Water Utilities Ltd [2010] EWHC 419 (TCC).

It is clear from these authorities that where a party to an adjudication has been successful on some issues but has been unsuccessful on others, but with the result that it has been ordered to pay a sum of money to the opposing party, it will not be permitted to challenge the validity of the decision as a whole whilst at the same time asserting a right to rely to its benefit on those parts of the decision on which it had been successful. However, that does not appear to be the position here. Sisk asserts that in the subsequent Application No 15 Duro has adopted a position that is consistent with some of the findings of the Adjudicator although these were in relation to issues which it unsuccessfully contested during the adjudication. It seems counterintuitive for it to be submitted that Duro’s present position on these issues is to its benefit, when it saw fit to put forward contrary arguments before the Adjudicator.

Putting it another way, one would assume that the arguments presented by Duro before the Adjudicator were presented and pursued because Duro perceived that, if successful, the outcome would be to Duro’s benefit. If on some of those arguments where it was unsuccessful it is now prepared to accept the position as determined by the Adjudicator, it is hard to see how this can be described as a benefit.

Whatever the true position, it is certainly not clear cut and I would not be prepared to reach a conclusion on it without hearing further oral argument. In all the circumstances - in particular in the light of my other findings - I do not consider that to invite further submissions would be a proportionate or appropriate course to adopt.

For the reasons that I have now given, Duro’s challenge to the Adjudicator’s Decision fails on every ground. Accordingly, Sisk is entitled to summary judgment as claimed, together with appropriate interest (the amount of which I will leave the parties to agree).

If the parties cannot agree on an appropriate order for costs, counsel are to make written submissions not exceeding three pages (12 point font and 1.5 line spacing, or equivalent). These are to be submitted within seven days of the handing down of this judgment in draft and, if appropriate, I will decide the issues relating to costs on paper.