Adducing Fresh Evidence in CIPAA

In an application to set aside an adjudication decision under the Construction Industry Payment and Adjudication Act 2012 (CIPAA), can one rely on new evidence that was not adduced in the adjudication?

In Bluedream City Development Sdn Bhd v Pembinaan Bina Bumi Sdn Bhd and another case [2021] 11 MLJ 641, Bluedream appointed Bina Bumi as its contractor. After the work was completed, the parties entered into a settlement agreement. One of the issues in the adjudication was whether one particular interim cert. – ICR 4R was included in the settlement. The Adjudicator held it was and awarded the sum thereunder.

In setting aside the adjudication decision, Bluedream sought to introduce a letter showing there was an over certification.

The learned high court judge decided that Bluedream can adduce the new evidence (but the judge ultimately held the new evidence was not enough to set aside the adjudication decision). His Lordship held:

(1) There is nothing in CIPAA which prevents a party in an application to set aside (or any other applications), from adducing new evidence which were not produced in the adjudication proceedings;

(2) Considering the strict timeline under CIPAA, it was understandable if the parties might inadvertently left out such evidence in the adjudication proceedings;

(3) If the new evidence was not allowed, that may cause injustice to the party seeking to adduce the same in cases where he/ she cannot with reasonable diligence procure the said evidence for the adjudication proceedings;

(4) As the other party will have the opportunity to rebut the new evidence, there is no prejudice in admitting the same in the application to setting aside;

(5) There should be reasonable explanation by the party seeking to introduce the new evidence to explain why the same could not be entered in the adjudication proceedings; and

(6) If there is no reasonable explanation, it may cast doubt on the weight of the new evidence and the bona fide of the party adducing the same.

As held by the learned judge in Bluedream City, there is no other case on adducing fresh evidence in relation to any application under CIPAA.

Yet, the principle laid down in Bluedream is a departure from the principles in Ladd v Marshall [1954] 3 All ER 745 on adducing fresh evidence on appeal.

(ie.: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at 1st instance;

(2) if produced, the evidence must be such that, it would probably have an important influence on the result of the case, although it need not be decisive; and

(3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.)

Whilst it is true that CIPAA proceeding and an application to set aside a decision thereunder are distinct from a trial proceedings in court and an appeal respectively, yet, the principles laid out in Ladd v Marshall applies even in an application to set aside an arbitration award (see Westacre Investments Inc v Jugoimport SDRP Holding Company Limited and 4 Ors [1998] 3 WLR 770 and in the Malaysian context; the case of Iskandar Regional Development Authority v SJIC Bina Sdn Bhd [2020] MLJU 566).

It will be interesting to see if future cases on this issue will follow the ratio in Bluedream City or apply the almost universal test of Ladd v Marshall.