ADJUDICATOR ON A 'FROLIC OF HIS OWN'

In Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board [2012] EWHC 84 (TCC), [2012] All ER (D) 187 (Jan) Mr Justice Akenhead held that a decision of an adjudicator could not be enforced because he had exceeded his jurisdiction by addressing and finding a method of assessment which formed no part of the dispute which ` the principles of natural justice in deciding the case on a basis that had not been argued by either party and without giving to the parties the opportunity to make submissions on the method of assessment which he considered that he should adopt. The adjudicator had gone off ‘on a frolic’ of his own and it was a ‘frolic’ which may have made a material difference to the outcome of the decision. It followed that his decision was unenforceable.

The facts

The defendants employed the claimants to provide the equipment required in order to remove a cargo ship which had been sunk close to the entrance to Dover Harbour during the Second World War. The contract between the parties was on the standard form of International Wreck Removal and Marine Services Agreement which included an adjudication clause which made provision for adjudication of disputes under the Institute of Civil Engineers procedure. Although the project was completed by the claimants, it was not completed on time and the issue between the parties concerned the financial consequences of the delay.