Assuming that good grounds exist on which a decision may be subject to objection, in the absence of an express reservation of rights, either the whole of the relevant decision must be accepted or the whole of it must be contested..
Marsh was therefore precluded from challenging the Decision in the enforcement proceedings. However, in case he was wrong, the Judge did go on to review the natural justice challenge. Before doing so, HHJ McKenna reminded the parties that for a breach of natural justice to be a bar to enforcement, the breach must be plain, significant and causative of prejudice. Here, the Judge accepted that the Adjudicator may have misunderstood the nature of certain of Marsh's arguments. However, the Judge then reviewed in general terms what it was the Adjudicator had been asked to do. Here, the Adjudicator was specifically asked to determine the issue of loss and expense and that was what he did. Marsh had argued that contractually there was no entitlement to loss and expense and the Adjudicator had rejected that argument. In doing so, the Adjudicator accepted Dawnus' contractual arguments about which were the relevant events that should be taken into account. He had therefore addressed the question that had been put to him. The Judge concluded that Dawnus: "may not like that conclusion but to my mind it is stuck with it."
*This article first appeared in Lexology
About the Author
Jeremy Glover Partner
Jeremy has specialised in construction energy and engineering law and related matters for most of his career. He advises on all aspects of projects both at home and abroad, from initial procurement and strategic project advice to dispute avoidance and resolution. He acts across a wide range of construction sectors in the UK and internationally, including general construction, transport, communications, process plant, oil, gas, nuclear and renewables.