In the distant days when I trained in the criminal courts of the Home Counties, there was a defence doing the rounds among the seasoned pub brawlers who were regularly charged with violent-disorder offences. The defendant would argue that he (it was usually 'he') anticipated that the victim was going to cause trouble and that he 'retaliated in advance'.
Upon this unlikely platform the defendant would hope to found a defence of provocation or even self defence to a charge of causing grievous bodily harm.
The feeling that I experienced when confronted by such a prospect convinced me that I was not cut out for crime.
Decades later, and from the comparative comfort of the world of construction law, I encountered a similar concept in the unlikely forum of adjudication. This time it was 'defence by ambush'. Ambush and adjudication are, of course, no strangers. Some might even suggest that the whole idea of adjudication is to ambush the unsuspecting defendant, and, for that matter, the adjudicator, with 26 lever-arch files of detailed delay claim supported by several experts' reports; various network analyses; and a CD-ROM, while simultaneously demanding your right to a fair and enforceable answer within 28 days.
The concept of 'defence by ambush', however, was coined in the recent Technology and Construction Court (TCC) case of Kier Regional Limited v City & General (Holborn) Ltd (Judgment 06.03.06). Kier sought to enforce an adjudicator's decision on a dispute arising out of the refurbishment of London's former Patent Office Library. Kier referred two claims for extensions of time to adjudication. In adjudication number three, it claimed loss and expense of £1.3 million.
The developer's response to the claim included allegations of concurrent delay and miscalculation of losses and was supported by the reports of two experts. Kier objected that the reports contained detailed new evidence it had insufficient time to respond to. The adjudicator agreed and refused to consider the developer's expert evidence but went on to find largely in Kier's favour, awarding it £1.25 million.
The developer resisted Kier's court application to enforce the decision on the grounds that the adjudicator had wrongly refused to consider its experts' reports. The decision was, it said, unfair and a nullity.
Kier countered that the developer had conducted a 'defence by ambush' by producing new evidence at a late stage and that the adjudicator was entitled to disregard it.
Despite the fact that Mr Justice Jackson believed that the adjudicator should have taken the experts' reports into account, he held that the failure to do so was an error of law which did not invalidate the decision. For good measure, he pointed out that earlier cases that suggested the contrary must now be regarded as incorrect.
Kier's case shows that attempts to avoid adjudicators' decisions because they were reached in breach of the rules of natural justice and unfair will be about as successful in the TCC as the defence of 'retaliation in advance' was in Maidstone Crown Court.