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Slipping off the couch

Thursday, 18 May 2017

A Technology and Construction Court judgment of 11 May 2017 is a salutary reminder of the need to consider how to couch requests for amendments to adjudicators’ decisions under the slip rule.

 

A Contractor applied for summary judgment for the enforcement of an adjudication decision. The Defendant responded that the adjudicator had failed to apply the rules of natural justice, rendering the decision unenforceable. The Contractor successfully argued that the court did not need to deal with the natural justice point. Why? Because by inviting the adjudicator to correct errors in the decision under the slip rule, the Defendant had chosen to accept that the decision was valid.

 

The judge agreed. What could the Defendant have done to preserve its position on the natural justice argument? Quite simple: in the words of the judge:

The Defendant could have...expressly reserved its right to pursue a claim of breach of the rules of natural justice when inviting the Adjudicator to make corrections under the slip rule. In the absence of so doing, having regard to all the circumstances of the case, by inviting the Adjudicator to exercise his powers under the slip rule, in my judgment the Defendant waived or elected to abandon its right to challenge enforcement of the Decision since it had thereby elected to treat the Decision as valid.

 

For those interested in the principle behind this judgment, it is approbation and reprobation i.e. not allowing a party to blow hot and cold as to the validity of a decision.

The full judgment in Dawnus Construction Holdings Limited –v- Marsh Life Limited [2017] EWHC 1066 (TCC) may be read at http://www.bailii.org/ew/cases/EWHC/TCC/2017/1066.html

 

Any questions?

Please contact our construction unit on 01454 619619 or jan.grimshaw@daviesandpartners.com

 

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