Adjudication Matters Christmas Quiz 2019 – Answers

23rd December 2019

Thank you to all those who took part in our Adjudication Matters Christmas Quiz 2019! The answers to all questions, as well as details on where you can find more relevant information relating to topics covered in the quiz, are set out below:

Question 1

Where an adjudicator makes a decision on a point not put forward by either party during their submissions, this may constitute a breach of natural justice and can lead to the decision not being enforced. True or false? (1 mark)

Answer: True (See Adjudication Matters September 2019 Edition).

Question 2

What does the “slip rule” allow an arbitrator or an adjudicator to do? (2 marks)

(a) To make site visits or inspections in order to better inform his decision

(b) To resign from the dealing with the specific case (e.g. due to insufficient evidence, lack of technical expertise or insufficient time)

(c) To correct any accidental errors, mistakes or omissions i.e. “slips” in judgments or orders

Answer: (c) to correct any accidental errors, mistakes or omissions i.e. “slips” in judgements or orders (See Adjudication Matters June 2019 Edition).

Question 3

Within adjudication proceedings, if a party is incorrectly referred to by its trading name (rather than its legal name) this can still be sufficient so as to confirm its identity for the purposes of the dispute so that the adjudicator’s decision may be enforced. True or false? (1 mark)

Answer: True (See Adjudication Matters November 2019 Edition).

Question 4

The TCC’s decision in Gosvenor London Limited v Aygun Aluminium UK Limited [2018] EWCA Civ 2695 has established which additional ground for seeking a stay of enforcing an adjudicator’s award? (2 marks)

(a) The probable inability of the claimant to repay the judgment sum (awarded by the adjudicator and enforced by way of summary judgment) at the end of the substantive trial or arbitration hearing

(b) If the evidence demonstrates there is a real risk that any judgment would go unsatisfied by reason of the claimant organising its financial affairs with the purpose of dissipating/disposing of the adjudication sum so that it would not be available to be repaid

(c) If the claimant is insolvent liquidation or there is no dispute on the evidence that the claimant is insolvent

Answer: (b) if the evidence demonstrates there is a real risk that any judgment would go unsatisfied by reason of the claimant organising its financial affairs with the purpose of dissipating/disposing of the adjudication sum so that it would not be available to be repaid (See Adjudication Matters September 2019 Edition).

Question 5

An Adjudicator’s failure to consider witness evidence will always constitute a breach of natural justice even if it is considered that the evidence which has not been considered is not crucial to the case. True or false? (1 mark)

Answer: False – in J J Rhatigan & Co (UK) Limited v Rosemary Lodge Developments Limited [2019] EWHC 1152 (TCC), it was held that the failure to consider witness evidence does not necessarily constitute a breach of natural justice if it is considered that the evidence which has not been considered is not crucial to the case (See Adjudication Matters July 2019 Edition).

Question 6

What did Coulson LJ find in Bresco Electrical Services Limited [2019] EWCA Civ 27 regarding jurisdictional challenges? (2 marks)

(a) That a party cannot rely upon a vaguely worded general reservation at adjudication in order to leave open an opportunity to raise specific jurisdictional points later on to resist enforcement

(b) For a waiver to occur in a natural justice context, a party must be aware of the right to challenge the adjudicator’s decision and take a “clear and unequivocal step” to show it did not intend to rely on the natural justice challenge

(c) In the absence of an express reservation to make a jurisdictional challenge, the respondent appeared to be content to be bound by the adjudicator’s decision and was therefore bound by it

Answer: (a) that a party cannot rely upon a vaguely worded general reservation at adjudication in order to leave open an opportunity to raise specific jurisdictional points later on to resist enforcement Question 7 (See Adjudication Matters May 2019 Edition).

Question 7

If a company has the benefit of an adjudicator’s decision which has not yet been enforced, the right to enforce the decision may be lost if that company enters into a CVA. True or false? (1 mark)

Answer: True (See Adjudication Matters August 2019 Edition).

Question 8

What does the term “approbation and reprobation” mean in the context of adjudication? (2 marks)

(a) That a party can argue that an adjudicator’s decision is valid (and take the benefit of it) and at the same time seek to challenge the validity of the decision (or part of it)

(b) That a party cannot both argue that an adjudicator’s decision is valid (and take the benefit of it) and at the same time seek to challenge the validity of the decision (or part of it)

Answer: (b) that a party cannot both argue that an adjudicator’s decision is valid (and take the benefit of it) and at the same time seek to challenge the validity of the decision (or part of it) (See Adjudication Matters February 2019 Edition).

Question 9

What is the duty of natural justice? (1 mark)

Answer: Duty that adjudicators must comply with, that every party has the right to a fair hearing and the right to be hearing by an impartial tribunal (See Adjudication Matters April 2019 Edition).

Question 10

How many presents were given in total in the 12 Days of Christmas? (1 mark)

Answer: 364.

Merry Christmas and a Happy New Year from all at Walker Morris LLP