HT-2024-000316 - [2024] EWHC 3235 (TCC)

It is common ground that adjudication is inherently a rough and ready process and that the threshold for a valid natural justice challenge is high (see by way of example Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] EWHC 70 (TCC), (2009) 122 ConLR 55, [2009] Bus LR 1026 (“Dorchester Hotel”) per Coulson J at [18]-[23]). As Chadwick LJ observed in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358, (2005) 104 ConLR 1, [2006] BLR 15 at [86]:

“…The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case…The need to have the ‘right’ answer has been subordinated to the need to have an answer quickly”.

I need not set out the numerous authorities on this subject in any detail. However, I have extracted the following key principles, relevant to this case, from the authorities to which I was referred:

Ardmore relies upon the Scottish case of Whyte v Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd [2013] CSOH 54, 2013 SLT 556 (“Whyte”) in support of the proposition that there are rare cases in which the court will be persuaded to refuse enforcement owing to the size and/or nature and/or timing of the claim. Constable J considered Whyte in Home Group at [43]-[44] as follows:

“[43] Mr Neuberger also relied in his written submissions upon the Scottish case Whyte and Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd [2013] CSOH 54, 2013 SLT 555, the only reported case in which a court unequivocally refused to enforce the adjudicator’s decision because of the size and nature of the claim. The pursuer had employed the defender to advise and prepare a design for construction works. An adjudication award was obtained for £3,000,000 of which £894,674.00 was the assessed cost of future loss in carrying out underpinning to the property. The pursuer applied to enforce the award and the defender sought the reduction of the award on several grounds. The decision was not enforced due to the failure of the adjudicator to deal with certain issues, and Lord Malcolm expressed the view (at [47]) that—

‘the adjudicator was presented with a next to impossible task. Even a judge would struggle to identify a procedure which would allow the complex issues of fact and law arising between the parties to be determined in any semisatisfactory manner within six weeks. In the circumstances of the present case, the well known problems, disadvantages and potential injustices of an adjudication are not counter-balanced, let alone outweighed, by any of the aims and purposes lying behind the 1996 Act. It is those public interest benefits which justify enforcement of an adjudicator’s award, even a sub-standard and obviously wrong award … but they are more or less wholly absent in the present case. It follows that it would be disproportionate and wrong to enforce the award

…’

[44] In the commentary on this case in Coulson on Construction Contracts, the editor does not take issue with the determination of the Court in any way, describing the decision as careful and well-reasoned. It explains how, in that particular case, adjudication was an inappropriate process. ‘Finally’, the editor observes, ‘there is a case that concludes that, sometimes, a claim will be too large and/or too complicated and/or raised too long after completion to be suitable for adjudication’”.

At [45] Constable J expressed the view, with which I agree, that:

“[t]he issue in Whyte did not turn on questions of volume of complex material and constraints of time to respond…The driving concerns of the Court when considering the proportionality of enforcement (which amounted to an interference with the defenders’ entitlement to peaceful enjoyment of their possessions) were the fact that the adjudication, relating to issues of professional negligence, had been brought more than six years after completion of the works, and that the pursuer would suffer no loss for many years into the future. Both of these fundamentally were at odds, it was held, with the rationale behind the statutory regime for speedy non-binding determinations”. Ground 3

In Ms Whiting’s statement she asserts that “[t]he fundamental reason BDW’s claims were not suitable for adjudication is because of the passage of time” and she suggests that “Parliament could not have envisaged adjudication being used to resolve disputes on projects up to 30 years after practical completion”. However, this was not the case advanced in argument.

Instead, Ardmore now makes a rather more nuanced argument. It contends that the unique combination of a 20 year old project and the pursuit of a £15m professional negligence claim by way of adjudication, a procedure which was primarily designed for the resolution of live or recent disputes, has created an inherently unfair situation in which it has “almost no relevant contemporaneous documentation” but must rely upon documents provided by BDW together with the searches made by BDW for documents. The problem it identifies is not the complexity of the issues or the amount of documentation involved, but rather the paucity and imbalance of documentation available to Ardmore together with a process which is not capable of adequately addressing those problems. Ardmore points out that unlike arbitration or litigation, the adjudication process has very limited procedures to manage or police the disclosure process and that it is therefore impossible to address the unfairness of the position in which it finds itself by reason of its lack of access to relevant documents.

Mr Pliener accepts that the mere fact that this is an historic case is not, in itself, sufficient to give rise to a natural justice objection (Footnote: ⁴). He also accepts that some element of unfairness, or at least the risk of unfairness, is probably ‘baked in’ to the retrospective extension of time to the limitation period for claims under the DPA 1972 effected by the BSA 2022. While he suggests that the passage of time militates against a rigorous application of the public policy requirement for a “pay now, argue later” approach, he also concedes that Ardmore must make good its natural justice objection by reference to its complaint of a lack of documentation and thus an inequality of arms. He submits that the key question for the court is the extent of the latitude to be given to the application of natural justice in the context of disputes with an extended 30 year limitation period.

Although Ardmore suggests in Ms Whiting’s statement that BDW’s disclosure in the adjudication was “selective by nature” and that BDW had therefore “exerted a

BDW resists the suggestion that this is a “special” case, whether owing to the passage of time or the position in relation to the disclosure of documents and it rejects any analogy with Whyte. It points out that it provided disclosure to Ardmore in response to a request made by the Adjudicator, that Ardmore made no complaint about that disclosure during the Adjudication and that Ardmore has provided no adequate explanation for its lack of project documentation. Further it submits that Ardmore has not satisfied the burden of establishing that any breach of natural justice was material (see AMD at [23]).

To address these arguments I must now return to look at the chronology of events leading to the Decision, with a specific focus on the production of documentation by

As I have already said, the Letter of Claim attached what it described as “relevant Podium and Trifire reports” at Appendix 2. It is clear from the Letter of Claim that Podium LLP carried out intrusive surveys in May 2020 “for the purposes of obtaining EWS1 forms for the four buildings at the Development” and that “Podium identified the presence of a void between the insulation and internal block leaf and an absence of any horizontal fire barriers” (i.e. Podium identified the defect about which BDW was making complaint in the Letter of Claim). It is also clear that Trifire were instructed to advise on interim measures (including a waking watch and fire alarm system) necessary as a result of the missing fire barriers. In addition to these reports, the Letter of Claim also attached at Appendix 3 “relevant correspondence between Alumasc, Ardmore, SERS [the façade subcontractor] and others” which had been disclosed to BDW the previous year during investigations. This correspondence was summarised in detail in the Letter of Claim and was said to demonstrate that “cavity barriers were required by the manufacturer and that no alternative route to compliance was established at the time of construction”.

In its letter of 28 September 2022, Ardmore responded saying that it was continuing “to investigate the allegations” made in the Letter of Claim and that it would need more time to respond. On 19 October 2022, Ardmore invited BDW “to provide voluntary pre-action disclosure of all and any documents BDW has in its possession (or is able to possess upon request) relating to the project…”. Ardmore explained that it considered this to be a reasonable and proportionate request because it “will no longer possess records (which would have been disposed of in the ordinary course of business after the expiry of ordinary limitation)”. I pause to note the use of the conditional perfect tense here; there is no assertion at this stage that relevant documents had in fact been disposed of and there is nothing in the evidence for this hearing to suggest that this had in fact occurred. Ardmore went on to ask for documents relating to BDW’s standing to bring a claim together with details of the proposed remedial works considered necessary to remedy the alleged defects. It also requested that it be given an opportunity “to inspect any and all areas of the Development that are the subject to (sic) BDW’s claim prior to any remedial works being undertaken…”.

In its reply on 20 July 2023, BDW rejected the suggestion that Ardmore was entitled to wide-ranging pre-action disclosure. It noted, however, that in addition to the reports provided under cover of the Letter of Claim, it had also now provided Ardmore with “the Advice Note of Orla Fitzgerald, BDW’s expert architect”. BDW asserted that Ardmore now had “all that may be required” to understand BDW’s case. However, BDW offered Ardmore the opportunity to inspect the defects at the Development in advance of commencement of the remedial works.

Ardmore responded on 25 August 2023 noting that BDW had not provided details of six matters which were said to be “essential for Ardmore to be able to consider BDW’s claim”. With the exception of a request for information as to what surveys had been completed and whether further investigations were planned, these all related to information about remedial works and loss suffered by BDW.

Against this background, BDW sent its letter of 8 March 2024 indicating an intention to proceed to adjudication absent confirmation from Ardmore of its liability in respect of the identified defects.

In a letter dated 20 March 2024, Ardmore raised its natural justice objections, including that:

“Ardmore’s records in relation to the project are negligible and it has only today learnt that of the relevant project team, only 6 are still employed by Ardmore. Ardmore is investigating the extent of their knowledge and recollection as they could be employees dealing with matters unrelated to the external wall system. In any event, to expect these employees to have any cogent recollection of the project after 21 years and with many other projects completed since is unrealistic. In terms of records located to date, Ardmore has only been able to retrieve just over 1GB of data in relation to the entire project and expects that data to be irrelevant to the external wall render system in any event. It is of course validating this assertion”.

Ardmore did not explain why its records were “negligible”, why it had only just discovered the position in relation to its employees and why it “expected” the data it held to be irrelevant, nor did it say whether it had made any efforts to obtain documents from third parties. Nevertheless, it went on to point out that for the purposes of the Adjudication it would be “heavily, if not almost entirely, reliant” on documents selected by BDW and that this would be “inherently unfair outside the normal unavoidable risk of adjudication unfairness”. In its subsequent letter of 28 March 2024, Ardmore expressly pointed to the lack of power on the part of the Adjudicator to order a referring party to comply with disclosure obligations or to require third parties to provide disclosure. BDW responded to these points in a detailed letter dated 2 April 2024.

In his decision on Jurisdiction of 4 April 2024 the Adjudicator rejected Ardmore’s arguments. He noted that “the largest part of the Referral” was a fire report from Mr Brown and that a large bundle of exhibits containing primarily technical data had been supplied to Ardmore in full. He recorded that there were in essence “three full lever arch files and two smaller files which comprise the whole of the claim and the back up to it” and he rejected the suggestion that this involved a complex or “mammoth” task for Ardmore. He observed that the Response ought to be capable of being prepared in three weeks and he confirmed that: “[m]y examination of the case as presented in the Referral does not present an adjudication that could not comply with the rules of natural justice nor is the case as presented unreasonable or oppressive”.

On 5 April 2024, Ardmore wrote again to the Adjudicator to express its concern at his decision. It emphasised that the problem was not “in and of itself” that the project was 20 years old or that the issues are too complex or the documentation too extensive. Instead, it reiterated that Ardmore had “almost no project documents” and that, having now searched its electronic and hard copy archive it had identified only 5 documents of any potential relevance to the dispute. It was this evidential inequality on which Ardmore hung its case of unfairness. The letter went on to say this: “…should your Natural Justice Decision remain, in order to limit that unfairness to some degree at least, we invite you to exercise your powers under Clause 39A of the Construction Contract and direct BDW to search for and produce the narrow critical documents listed below to you and Ardmore”. In a table, Ardmore then made four targeted requests for documents which it said would not be onerous for BDW to disclose. It made clear that it was continuing to reserve its position on natural justice even in the event of provision of these documents but it confirmed that three weeks should be sufficient to provide its Response subject to time starting to run from the provision of the documents.

I pause to note that clause 39A.5.5.3 of the Building Contract provides that the Adjudicator may “[require] from the Parties further information than that contained in the notice of referral and its accompanying documentation or in any written statement provided by the Parties including the results of any tests that have been made or of any opening up”.

Also on 5 April 2024, BDW wrote to the adjudicator addressing the proposals in Ardmore’s letter of the same date. It pointed out that Ardmore’s letter was silent as to any efforts it had made over the last two years to investigate the claim but it indicated that it was content to agree an extended timetable.

In his Directions No 1, also issued on 5 April 2024, the Adjudicator directed that BDW provide the documents identified by Ardmore in its table “insofar as the documents requested are in the power and possession of BDW” and that (on the assumption these documents were readily available) they should be provided by midnight on 8 April 2024.

BDW provided additional disclosure in response to this direction under cover of a letter dated 8 April 2024. The disclosure provided was explained in an additional column added to Ardmore’s original table of requests, which BDW termed “Table 1”. BDW explained, however, that in the time available it had not been able to identify any (additional) documents falling within requests 2 and 4. BDW’s solicitors updated this position by way of a further letter on 16 April 2024 in which they explained that, in addition to the manual searches that had been undertaken in advance of the adjudication, they had now “conducted further manual searches of the documents available to us”. Specifically they confirmed that “we and our client have now completed a reasonable and proportionate search of all such documents and provide by way of disclosure limited additional documents as set out in the updated Table 1, enclosed”. The updated Table 1 shows that documents were now being provided by BDW in response to each of the four original requests made by Ardmore.

Ardmore responded to BDW’s further provision of documents in a letter dated 18 April 2024 by observing that it inferred that “BDW is not and will not be carrying out any further searches or providing any further disclosure”. It neither suggested that the searches conducted or the disclosure provided by BDW were inadequate, nor did it identify any additional categories of document that it wanted to see. It did not seek to query what documents were, or were not, searched for and Mr Pritchard confirms in his second statement that no such query was ever raised by Ardmore. Furthermore at no time during the Adjudication was it suggested by Ardmore that BDW had failed to comply with the Adjudicator’s direction of 5 April 2024. Instead, in the letter of 18 April 2024, Ardmore raised only two questions as to the external envelope works to the Development, inviting the Adjudicator to make urgent directions as to the provision of further information in response to those questions.

It is clear from the Decision [at 68.00] that the Adjudicator directed that he would like to see an answer to these two questions and that, on 19 April 2024, Howard Kennedy wrote two letters attaching further materials (Footnote: ⁵). Thereafter a timetable for the adjudication was agreed and on 8 May 2024, Ardmore provided its detailed Response.

In its Response, Ardmore again asserted that BDW had been selective in the documents it had disclosed and it maintained its position that it was reliant upon BDW for documents. However, in section 5 it referred to its requests for disclosure and further information, acknowledging that disclosure had been produced on three separate dates and then arguing that this disclosure undermined BDW’s case. There was no attempt to identify any further disclosure that was required. On the contrary, the focus appears to have shifted to the significance of the questions raised in the 18 April 2024 letter as to the external envelope works to the Development. I did not understand Ardmore’s submissions on natural justice to focus, or rely, upon a breach of natural justice in connection with any perceived failure to respond to these questions. This is unsurprising – in his Decision at 290.00-292.00 the Adjudicator explains that BDW provided a bundle of documents which satisfied the questions posed.

Ardmore’s Response to the allegations of deliberate concealment and breach of duty under the DPA 1972 comments in detail on the available documents but does not suggest anywhere that further categories of document are sought or required in order properly to defend the claim. On the contrary, Ardmore seeks to rely upon a failure on

In its Rebutter served on 5 July 2024, Ardmore again raised an issue about disclosure, specifically in relation to a report into the structure of the Development that Ardmore understood had been prepared by AECOM. Ardmore asked in the Rebutter for directions that two categories of document relating to AECOM’s review be provided. Ardmore pressed again for this disclosure in a letter of 19 July 2024 and on 25 July 2024, BDW agreed to provide (and did provide) various categories of document sought by Ardmore (albeit maintaining that they were “not material to the issues in this Adjudication”).

Finally, I should mention that under cover of its Response, Ardmore provided a witness statement from Ms Whiting of 8 May 2024, in which she explains, amongst other things, that (i) the decision had been taken by Ardmore only to divert significant resources into investigations in connection with this claim on 8 March 2024; (ii) Ardmore’s record keeping in relation to the project had not been robust; (iii) the archive had not been maintained “as well as we would now hope”; and (iv) that in 2017 there was a full physical relocation of Ardmore’s head office at which time “a number of archive boxes were delivered by the relocation company and left outside in the rain”, causing significant damage, albeit that it had proved impossible to identify whether any of these boxes had included hard copy records relating to the Development. Analysis

Against that background and in the particular circumstances of this case, I take the view that there is nothing in the complaints raised by Ardmore and that it is not entitled to any additional degree of latitude by reason of the passage of time, essentially for the following reasons.

Ardmore accepts, as it must, that the Adjudicator was satisfied that he could do broad justice between the parties. The court should be slow to interfere with that conclusion (see Home Group at [38]).

Ardmore also accepts that the mere passage of time is not in itself enough to create unfairness and it is clear from the authorities to which I have referred that adjudication provisions may be relied upon “at any time”. Nevertheless, in principle it must be the case that the longer the period since the works in respect of which complaint is made, the more careful the court will need to be in scrutinising any complaint of unfairness. I did not understand Mr Choat to dissent from the broad proposition that the passage of time will, in this sense, be a relevant factor.

The complaint here is not a complaint of complexity or volume of documents, just as it is not a complaint that the Adjudicator could not deal with the matter fairly within the relevant time constraints. Instead, it is that Ardmore does not have access to relevant documents but is reliant upon BDW’s disclosure, an issue which is said to have been exacerbated by the passage of time. This appears to me to raise two related questions relevant to the natural justice challenge: first, what is the reason for Ardmore’s inability to access relevant documents and/or information and second, given Ardmore’s stated lack of documents, were the broad requirements of natural justice satisfied during the adjudication process in relation to the provision of disclosure by BDW, even having regard to the passage of time?

As to the first question, it is quite clear that Ardmore’s record keeping over the relevant period has been deficient. This much is accepted by Ms Whiting in her statement of 8 May 2024 in which she says that “Ardmore’s record keeping in relation to recent projects is robust, but this is not the case for projects completed around the time of the Development”. One example of this that she gives is that documents relating to one project were sometimes stored in manuscript labelled boxes belonging to another. Although in her statement, Ms Whiting refers to the fact that, until recently, there has been no reason for those operating in the construction industry to retain documents for longer than required for usual limitation periods (i.e. 15 years), she does not say that Ardmore’s lack of documentation is the consequence of it having in fact operated on this basis. Instead the essence of her evidence is that Ardmore has been “unable to find” pertinent documents.

Against this background I can only infer that Ardmore’s lack of documentation is not down to disposing of documents after any relevant limitation period had expired. I note from Mr Pritchard’s second statement that there was in fact every reason for Ardmore to retain documents in relation to this project in circumstances where (i) by the time that this dispute was intimated in July 2022, there had already been two previous disputes about Ardmore’s works, the first in 2007 when Ardmore carried out remedial works to address water leaks and the second in 2015 when BDW arbitrated against Ardmore regarding balcony defects in Ardmore’s works, until a settlement concluded in February 2017 further to which Ardmore carried out remedial works to the balconies; (ii) the Grenfell Tower tragedy occurred on 14 June 2017, whilst Ardmore was carrying out these remedial works; and (iii) in 2019 BDW began asking Ardmore for documents relating to the cladding materials installed at the Development. Even assuming that Ardmore was operating on the assumption that documents needed only to be retained for 15 years (which does not in fact appear to be the case), these supervening events should have alerted it to the importance of retaining its documents for longer.

I consider that where BDW had been asking for documents relating to cladding materials since 2019 and BDW had sent its Letter of Claim in 2022, Ardmore should have taken proper steps over a number of years to find, and gather together, the documentation it had relating to its works. It is not clear to me that such proper steps were in fact taken, notwithstanding Mr Pliener’s submission that “in accordance with the usual narrative” Ardmore did “all that it could”.

In addition, and given the difficulties Ardmore says that it encountered in trying to locate documents, one might have anticipated that it would be keen to inspect the Development before any remedial works commenced – certainly it suggested as much in its letter of 19 October 2022. However, as I have already said in connection with Ground 1, Ardmore did not take up the offer to carry out such inspection and has provided no explanation as to why it did not do so. It may be that the reason is to be found in Ms Whiting’s candid statement that “[t]he need for Ardmore to divert significant resource into investigation only arose on 8 March 2024 when BDW provided the assignment of the contract and intimated an immediate adjudication”.

In so far as Ardmore had a paucity of information going into the adjudication by reason of either its poor record keeping or its own decision not to carry out any detailed investigations into the issues raised in the Letter of Claim and subsequent correspondence, including its decision not to inspect the Development when it had the opportunity to do so, that seems to me significantly to colour its natural justice complaint. Neither of these things would appear to be the consequence of the 20 year passage of time since the works. Specifically, I consider that it is difficult for Ardmore credibly to complain that it was not in a position to know what had actually been installed at the Development when it chose not to carry out its own inspection.

Further, and in any event, the chronology I have referred to above simply does not support the proposition that there was a breach of natural justice in relation to the provision of documents to Ardmore (i.e. the second question).

In its correspondence pre-adjudication, Ardmore originally sought extensive disclosure from BDW. It was provided with various documents and reports by BDW in advance of the adjudication and it is of course unsurprising that these were selected by BDW. That some reports were only provided upon commencement of the Adjudication (a complaint made by Ms Whiting in her statement) is not a valid complaint and was not pursued by Mr Pliener in his submissions.

Once the adjudication got under way, Ardmore chose to identify only four

Its requests for disclosure having been met, Ardmore did not complain of any omissions in the disclosure provided by BDW and nor did it choose to identify any additional disclosure that it needed (even though it was clear that its requests for disclosure would be taken seriously by the Adjudicator). Mr Pliener submitted that this reflected a recognition on the part of Ardmore that it was unlikely to achieve much more in the way of disclosure through the adjudication process, but he accepted that he had no evidence to that effect. Far from seeking additional disclosure, the correspondence shows that Ardmore concentrated on two questions about the building envelope which appear also to have been answered following a direction from the Adjudicator.

When Ardmore did identify an additional category of disclosure that it wanted to see in its Rebutter, this was again provided by BDW. During his submissions, Mr Pliener specifically focused upon the fact that the documents provided by BDW did not contain any contemporaneous photographs and that Ardmore has no means of knowing what happened to those. However, as he also accepted, Ardmore made no request for any photographs during the Adjudication, as it could have done. Mr Pritchard confirms in his second statement that if Ardmore had had a reasoned concern about any missing documents during the adjudication that concern “would have been investigated”. I have no reason to conclude otherwise.

Accordingly, I reject the suggestion that the Adjudication had insufficient “teeth” to ensure that Ardmore had access to the documents it required. Clause 39A.5.5.3 of the Building Contract gave the Adjudicator the power to require the parties to provide further information and documentation, a power which he exercised upon the request of Ardmore. The fact that an arbitrator may have had the power (depending on the procedure he or she decides to adopt under the Construction Industry Model Arbitration Rules (Footnote: ⁶)) to make more extensive and comprehensive disclosure orders does not appear to me to take matters further in the circumstances of this case.

Furthermore, I reject the suggestion that the inevitable consequence of the adjudication process was that Ardmore would receive only “selected” documents from BDW. There is certainly no basis on which to criticise BDW for the approach it took to disclosure, as Ardmore now accepts. On the contrary, it is clear from its evidence that BDW took the entirely proper approach of carrying out reasonable and proportionate searches and disclosing relevant documents to Ardmore. In his second statement, Mr Pritchard confirms again that his firm, Howard Kennedy LLP, and, to the best of his knowledge, BDW, “carried out a reasonable and proportionate search in order to provide documents responsive to Ardmore’s requests and the Adjudicator’s direction”. He explains his understanding that BDW’s document review had sought to capture BSC and BEL documents and he rejects the suggestion that the approach to disclosure was “selective”. He says that:

“My firm and I took very seriously the Adjudicator’s direction of 5 April 2024 and complying with the same. When complying with it we were not ‘selective’, rather, we sought to find and provide responsive documents, whether or not they might be helpful or unhelpful to either side’s cases”.

Ardmore does not appear to dispute this evidence. Instead, it complains that it does not know the scope or extent of the searches undertaken by BDW, an issue described by Ms Whiting in her statement as “critical”. However, this was not a complaint raised by Ardmore during the Adjudication and it also made no attempt to ask for further information about the scope of the searches, as it could have done had it genuinely considered there to be a need to understand their scope. In his oral submissions, Mr Pliener clarified that Ardmore’s real point was that the process of adjudication does not oblige either party to search for documents, but I cannot see that this advances his position where this will always be the case in any adjudication. Does the historic nature of the dispute exacerbate the situation, bringing the absence of searches into sharper relief on the facts of this case? I think not, given Ardmore’s failure even to refer to the point during the adjudication, a failure which undermines its credibility at this stage. The complaint at the time of the adjudication concerned only

Further and in any event, it is common ground that Ardmore carries the burden of establishing the materiality of any breach of natural justice. At the hearing there was a debate between the parties as to whether it is necessary for Ardmore to show that the breach “was” in fact material to the outcome of the Adjudication, as BDW contends, or whether it is sufficient for Ardmore to show that it was “potentially” material, as Ardmore contends. Having considered the authorities with care, I am inclined to agree with Mr Pliener that the breach must be shown to have had “a potentially significant effect” on the overall result of the adjudication in that it is either “decisive or of considerable potential importance to the outcome…and is not peripheral or irrelevant” (see Pilon at [22.4] and Cantillon at [57(c) and (d)]). Mr Choat relied upon Constable J’s distillation of the relevant legal principles in Home Group at [50(2)] for his proposition that the breach must be shown to be material “in that it has led to a material difference in outcome”, but I can find nothing in Constable J’s earlier analysis of the authorities to support this proposition.

In any event, however, whichever test is to be applied, Ardmore has failed to satisfy it. The highest it has been able to put its case on materiality is apparent from Ms Whiting’s statement in which she says that “it is probable” that records from BSC or BEL “would be materially relevant to Ardmore’s defence to BDW’s deliberate concealment claims” and that evidence from these companies “more than likely exists, and…could have provided Ardmore with a compelling defence”. To my mind this rather speculative evidence is very far from establishing that any disclosure that might have been available from these companies (Footnote: ⁷) would have had a potentially significant effect on the outcome of the adjudication, much less that it would in fact have been decisive.

I also reject Ms Whiting’s suggestion in her evidence that the Adjudicator “seems to recognise that the absence of documents caused material harm to Ardmore’s defence”. I do not read the Adjudicator’s statement that he could only find documents confirming the necessity of fire barriers but could not find anything to suggest that fire barriers were not being provided as being intended to indicate that further disclosure was likely to have made a material difference to Ardmore’s defence. On the contrary, it is purely a comment on the weight of the evidence. Ms Whiting’s assertion that “if a robust process of disclosure had taken place…it is arguable that BDW would have produced documents that provided Ardmore with a compelling defence” appears to me to be nothing more than wishful thinking.

During his oral submissions, Mr Pliener pointed to paragraph 272.00 of the Decision where the Adjudicator explains that, on the evidence, there is “no certainty at all” as to what was installed on the external walls of the Development. He submitted that this was an issue that could have been resolved with additional disclosure.

Mr Pliener then pointed to paragraphs 381.00-394.00 of the Decision, in which the Adjudicator deals with the issue of whether there had been deliberate concealment of the lack of fire barriers. He submits that the Adjudicator’s decision on this point was made in the absence of all relevant documents. However, looking at the reasoning of the Adjudicator in this section of the Decision, I note that he does not say that he has not seen all relevant documents (as Ardmore suggests). He observes at 386.00 that he has examined in excess of 2500 documents and, although he accepts that he has “not seen every document generated in connection with this project” (an entirely unsurprising statement), nevertheless he says “the parties have made it clear given the date of the contract in 2002 they have done their best in finding those documents that exist readily in order to provide as much as they can to assist this Adjudication”. At no time did Ardmore identify any additional documents it wanted to see, or seek a further direction from the Adjudicator for the provision by BDW of additional documents or information, in connection with this allegation. Further, there is, in any event, no credible evidence whatever to support the suggestion that any additional disclosure would potentially have made a material difference to the outcome.

Finally, Mr Pliener pointed to various paragraphs in Ardmore’s Response and in its Rejoinder to Reply in which it made clear that BDW and/or its agents, BSC and BEL, would have been present on site during the construction of the Development – the inference being that they would have had access to numerous project documents. However, none of these paragraphs identifies the absence of relevant documents as a material factor in Ardmore’s defence. On the contrary, they make submissions as to what the available documents (including progress reports disclosed by BDW) show, together with seeking to make a virtue of a lack of evidence from BDW. Once again, I consider these submissions on close analysis to be very far from establishing a potentially material effect on the outcome of the Adjudication by reason of a lack of disclosure.

Indeed, Ardmore’s chosen approach at various junctures in its Response and Rejoinder to Reply (to the effect that there was an absence of substantiation by BDW of its case) does not appear to me to sit well with the submission that Ardmore was potentially materially prejudiced in its conduct of the adjudication. Parties who consider their opponents not to have produced sufficient by way of evidence to satisfy the burden of proof may choose not to seek further disclosure for fear of inadvertently improving the evidence against them. While it is impossible to know whether a strategic decision of that sort occurred here, there can be no doubt that Ardmore chose not to make any additional requests for disclosure beyond those to which I have referred in the chronology above. Equally, it has not chosen to address the reasons for this decision in its evidence. Each of the requests it did make was satisfied.

In all the circumstances, I do not consider that there is any real analogy to be drawn between the facts of this case and those in Whyte. That case was, in any event, decided on its own facts. It did not involve arguments of the sort that have been raised here as to a lack of documentation. While it is true that both cases involved the passage of time, that is really where any similarity ends.

In my judgment the natural justice challenge under Ground 3 fails; Ardmore has no real prospect of successfully defending enforcement of the Adjudicator’s decision on that ground.