Legal quiz answer: how to handle last-minute information

In connection with the new expert evidence from the responding party employer, once the adjudicator has decided the evidence is not disallowed by the notice of adjudication, he or she has three main options:

1 Ignore the defence. This would be wrong in law, however, if the adjudicator does ignore the new evidence, this would not appear to be a breach of natural justice and would not invalidate any decision given.

2 Allow the defence and (with agreement) adjust the timetable to allow reasonable opportunity for the Referring Party contractor to reply. This would be the sensible approach, however, this does increase the adjudication timetable and you will be reliant on the contractor agreeing additional time.

3 Allow the defence but do not allow the contractor to issue any reply other than the brief notes already submitted. This option is perhaps the worst of both worlds. Having allowed the new evidence, the adjudicator should allow the contractor a reasonable time to respond; particularly since the contractor is able to extend the timetable without reference to the employer. Whilst accepting adjudication often involves rough justice, any decision made may prove unenforceable if there is a clear breach of natural justice.

The adjudicator can always take into account the relevance and effect of the late submission of evidence when considering the costs of the adjudication, notwithstanding whom the decision favours.

It is worth noting that, had the contract been JCT 98 WCD and had the employer issued no notices in respect of any application, then the defence, however valid, would be contractually irrelevant in that, in accordance with clause 30.3.5, the contractor is due the amount stated in its application.