Section 28(2) CIPAA makes it clear that the High Court can enforce an adjudication decision “either wholly or partly”. The question is, to what extent can the High Court enforce an adjudication decision “partly”?
Keating on Construction Contracts say that if there is a breach of natural justice, “the whole decision is unenforceable and it is not possible to sever the good from the bad”. With due respect, an adjudication decision may involve several different heads of claims (eg. certified sums, uncertified sums, retention monies, backcharges, interest element, etc). To adopt the view that a breach of natural justice in respect of, say the interest payable, would render the entire decision to be unenforceable would seem overly harsh, especially since breaches of natural justice would be errors on the part of the Adjudicator primarily and not errors of the claimant itself.
Hence, in Cantillon v Urvasco, the learned judge opined that if there was more than one dispute referred to adjudication, then where there has been a breach of natural justice in one dispute, that particular dispute can be severed from the other one.
That seems to make sense, in that where there are different heads of claim, and the High Court takes the view that there has been an error or breach of natural justice for one of the heads of claim, that particular head of claim can be severed and the rest of the decision enforced accordingly.
However, the question is whether the High Court can enforce partially one particular head of claim, for instance for uncertified sums?
If an adjudicator were to allow say RM1 million for uncertified sums, can the High Court turn around and say that exercising its powers in section 28(2) CIPAA, it only allows enforcement of RM800,000?
With respect, doing so would mean that the High Court necessarily has to look into the merits of the RM1 million decision, and effectively sit in appeal or re-hearing of the adjudication proceedings. It is well-accepted that a High Court does not do so, and that notwithstanding mistakes by the Adjudicator, the Adjudication Decision should generally be allowed to stand as a temporary finality pending final determination.
Hence, it is submitted that the powers of the High Court to enforce partially an Adjudication Decision under section 28(2) CIPAA ought only to be exercised in order to exclude (entirely) any particular head of claim. It ought not be employed for the purpose of reviewing the Adjudication Decision in order to allow enforcement of part of a particular head of claim, because that would essentially be the High Court sitting in appeal and/or re-hearing of the adjudication process.
We will await a suitable case to advance this proposition for the High Court’s deliberation.
Kheng Hoe Advocates advises clients in arbitration, litigation, adjudication (CIPAA) and mediation of construction disputes. We can be reached at email@example.com.