Section 25(d) CIPAA allows an adjudicator to appoint independent experts to inquire and report on certain matters with the consent of the parties. It would seem therefore, that, consent of both parties are required before an adjudicator appoints an independent expert.
Even with the consent of parties, an adjudicator must be careful to ensure that he complies with natural justice when he relies on the expert’s report. Hence, if an expert were to decide on a particular issue, and that issue will influence the adjudicator’s decision, it would seem to be appropriate that the expert report must be provided to the parties for their comment beforehand. Otherwise, the adjudicator will be deciding on a point of importance not referred to parties, which would be a breach of natural justice.
This happened in RSL (South West) Ltd v Stansell Ltd, where an initial report was submitted to parties for their comments. RSL was unhappy with the initial report and submitted their comments, whereas Stansell which was happy with the initial report did not make any comment. The expert subsequently considered RSL’s comments and issued a final report (which was different from the initial report). This final report was not submitted to parties for their comments.
The court refused to enforce the adjudication decision on the basis that there has been a breach of natural justice. This was despite parties having consented to the appointment of the expert in the first place.
In short, adjudicators should always be very wary about ensuring all parties have the reasonable opportunity to comment on important points raised that would affect the adjudication decision. That is a task that sounds easy on paper, but sometimes not so simple in practice when issues get overly complicated.
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