Adjudicating in lockdown

Adjudication is a fast track dispute resolution process and those familiar with adjudication will know that the timetable can often be rapid and sometimes challenging.  With the added difficulties now faced due to the lockdown, will adjudication be expected to proceed as normal?

MillChris Developments Ltd v Waters [2020] 4 WLUK 45

In the recent case of MillChris Developments Limited v Waters, MillChris, the contractor, brought an application to the court seeking an injunction to prohibit Ms Waters from proceeding with an adjudication against it.  MillChris had carried out works to Ms Waters’ property in September 2017 and had subsequently ceased trading in November 2019.

Ms Waters alleged that the works were defective and that she had overpaid.  On 23 March 2020 (the same day as the UK Lockdown was announced by the Prime Minister), Ms Waters started an adjudication against MillChris.  An adjudicator was appointed and proposed a timetable setting out dates over the coming weeks for the submission of evidence and a site visit.

MillChirs said it was unable to comply with the timetable due to the Covid-19 crisis and sought to persuade the adjudicator that the adjudication should be postponed until after the lockdown.  The adjudicator decided to proceed but proposed a two-week extension to the timetable to give MillChris further time.

MillChris applied to court for an injunction arguing that were the adjudication to go ahead, it would be in breach of the rules of natural justice as it did not have enough time to prepare as a result of the  Covid-19 crisis and the fact that it was no longer trading.  MillChris stated that its solicitor was self-isolating, which made it difficult to obtain evidence, and that it would be unfair to proceed with a site visit when MillChris was unable to attend (there not being enough time to appoint an independent surveyor).

The court held that the threshold for granting an injunction had not been met.  In any adjudication, issues had to be addressed in a short timescale and the court rejected MillChris’ submission that the situation had been exacerbated by the Covid-19 crisis.  It was noted that there had been no explanation as to why papers could not be transported or scanned to the solicitor or anyone else instructed in the matter.  Additionally, the reason that MillChris had been unable to obtain evidence had little to do with Covid-19 but rather with the fact that MillChris had been unable to contact its former managing director within the short time available, nor had any attempt been made to contact its former project manager. 

With regard to the site visit, the parties to an adjudication had no specific right to be present at a site visit and the adjudicator could conduct the site visit on his own. Whilst Ms Waters was likely to be present (as it was her property), arrangements could be made for the visit to be recorded or for MillChris to list specific matters in advance for the adjudicator’s attention. 

A such, the injunction would not be granted and the adjudication would proceed.

The threshold for an injunction to prohibit adjudications is a high one. Every case will turn on its own facts, but this case certainly suggests that the courts will generally expect adjudications to proceed despite the additional practical difficulties that might be faced in the current climate.

For more information on the article above please contact Stephen Homer and Ella Nyakuedzwa-Smith.

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