Covid-19, Adjudication Natural Justice: MillChris Developments Ltd v Waters [2020] 4 WLUK 45

The courts have refused an injunction against the continuation of adjudication proceedings where the responding party alleged a breach of natural justice due to COVID-19. 

An injunction was sought to prevent an adjudication continuing until the lockdown measures are lifted on the basis that to proceed would be in breach of the rules of natural justice on the grounds that the responding party did not have enough time to prepare for the adjudication due to the Covid-19 health crisis and the fact that they were no longer trading.  They claimed that the health crisis impacted as follows:

  1. Their solicitor had to self-isolate thereby making it difficult to gather evidence.
     
  2. Due to the circumstances, none of its representatives could attend the site visit and there was not enough time to appoint an independent surveyor to be present. Therefore, they claimed that this would be unfair.

The court held that the link between the health crisis and the need for an injunction was questionable.  There was no reason that the solicitor could not do the necessary work whilst isolating and the failure to gather evidence was found to be due more to the fact that the responding party to the adjudication had been unable to contact witnesses in the time frame.  The difficulties arising out of the lockdown could have been alleviated to a certain extent by a 2 week  extension  of time that had been offered and therefore this case was not exceptional. 

The court also found that the parties had no right to be present at a site visit. The site visit could be conducted by the adjudicator without the responding party (or its representative being present), but arrangements could be made for the visit to be recorded or for a list of specific matters given to the adjudicator before the visit was made.

This is the first indication that the restrictions of lockdown and the added difficulties this causes are unlikely to derail adjudications. We will have to wait and see whether that will always be the case. 

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