Evidence…
Adjudication is an extremely effective dispute resolution process – but it is vital for a party to adjudication to have a thorough understanding of both the process and the key ingredients that are required in order to minimise the risk of receiving an adverse decision. There is nothing worse than knowing you have an excellent case, but because of a lack of evidence that is material to the matter referred or, you or your professional adviser are unfamiliar with the adjudication process and fail to identify flawed procedures, the adjudication is decided in favour of your opponent – in other words, you are unsuccessful as a result of your own shortcomings! Such a situation was highlighted in the recent High Court case of All in One Building and Refurbishments Ltd. v Makers UK Ltd. [2005] EWHC 2943 (TCC), Makers, who were refurbishing a tower block in Northampton, repudiated the contract with its sub-contractor, All in One, resulting in All in One referring the dispute to adjudication. The Adjudicator’s Decision awarded All in One £91,811 for works executed and materials supplied up to the date of repudiation and a further £38,326 by way of damages for Makers’ repudiation of the contract. Due to non-payment, All in One instigated enforcement proceedings of the Adjudicator’s Decision in the TCC. Makers argued, inter alia, that All in One had failed to provide any evidence in support of the damage claim for repudiation. In his judgement, His Honour Judge David Wilcox said at paragraph 29: “…I am satisfied the adjudicator had jurisdiction as to that claim and AIO accepted his belated invitation to pursue this aspect of the claim by providing the appropriate detail in evidence rendering it evidentially viable and Makers sought further time to respond to the late particularised claim.” The Judge enforced the Adjudicator’s Decision and refused to grant a stay. All in One should have adduced the necessary evidence in support of its case before referring the matter to adjudication but, because Makers had agreed to respond to the new evidence during the adjudication, they had effectively barred any right to challenge the Adjudicators Decision – an error which cost Makers an additional £38,000.

© Michael Gerard Consulting Limited
April 2006