Adjudicator’s Expert Assistant – Delegation of Decision-making role?

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John Sisk & Son Limited v Duro Felguera UK Limited [2016] BLR147 TCC – Edwards-Stuart J

Facts

Sisk was working on a combined cycle power plant and employed Duro to carry out civil works.  A dispute arose on valuation which Duro referred to adjudication.  The Adjudicator appointed a quantity surveyor to assist him but only explained this in a meeting during the adjudication.  He proceeded to award £10m to Duro which Sisk refused to pay on the basis that the Adjudicator’s Decision was invalid.  It alleged that he had wrongfully delegated part of his decision-making function to a third party without the consent of either Sisk or Duro.

TCC Held

  1. The Adjudicator had told the parties at the meeting during the adjudication that he was appointing a QS to assist him in managing the 20 lever arch files he was presented with. Neither party had objected.  The QS had assembled or manipulated the data to make the figures manageable and make the task feasible.  He had also taken notes of meetings and provided general administrative support.  He had not taken the decisions.
  2. Sisk’s objection to payment was therefore dismissed.

 

Comment

  1. The Judge confirmed that an adjudicator does have a duty to carry out and make his Decision himself and if, say, he wants to bring in an expert witness to assist him, he needs the parties’ consent. As long as he has it there is no reason why he should not share the decision-making process with an expert assistant.
  2. As a matter of fact this is not what had happened, as the assistant’s role was not at a decision-making level. The parties had given their consent at the meeting anyway.

Nevertheless it would have been sensible if the Adjudicator had written to the parties clearly setting out the role he envisaged for Mr Hutchinson, explaining that there would be no delegation of decision-making powers.  Transparency is always the best policy.

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