City Inn Ltd V Shepherd Construction Ltd (Part I)
Scotland, Outer House, Court of Session
17 July 2001
The contract which incorporated JCT 80 as amended was for the construction of a hotel. A dispute arose as to the contractor’s entitlements to the extensions of time certified by the architect and awarded by the adjudicator to whom the dispute was initially referred. The contractor claimed the extension of time awarded by the adjudicator. The preliminary issues in the court proceedings included whether the adjudicator’s award affected the onus of proof in relation to the extension of time awarded. The contractor submitted that the binding quality of the adjudicator’s decision continued until the court proceedings were finally determined.
Lord Macfadyen held that the adjudicator’s decision that the contractor was entitled to an extension of time over and above the extension granted by the architect had no effect on the contractor’s burden of proof to establish such an entitlement in the present court proceedings. He stated that the employer correctly submitted that the function of adjudication under the Construction Act 1996 was merely to provide a speedy means of reaching a binding interim determination of disputes arising under construction contracts. This was illustrated by the marginal note to clause 41A.8.1 of JCT 80 which provided that arbitration or court proceedings were not an appeal against the adjudicator’s decision and a consideration of the dispute as if no decision had been made by the adjudicator. The judge also stated that the contractor’s submission involved reading too much into the reference in clause 41A.8.1 (and section 108(3)) to the adjudicator’s decision being binding until the dispute’s final determination to construe it as affecting the burden of proof in the arbitration or court proceedings.
Adjudication proceedings are separate and independent from court proceedings deciding the same issues as are decided in the adjudication. The courts should pay no attention to the adjudicator’s decisions or any reasons given by the adjudicator for the decision. Above all the fact that a claimant might have received a favourable award from an adjudicator does not mean that he has any other burden of proof in any subsequent court or arbitration proceedings. The claimant must effectively make his case afresh.