Gillies Ramsay Diamond V PJW Enterprises Ltd

The adjudicator's decision was not made without jurisdiction on the ground that the reader of the decision could have had no confidence that the adjudicator had asked himself the right questions by reason of his reasons for the decision not being intelligible, proper or adequate
 
GILLIES RAMSAY DIAMOND v PJW ENTERPRISES LTD

Scotland, Inner House, Court of Session
Lord Justice Clerk and Lords Macfadyen and Caplan
24 December 2003
 
The adjudicator found that the contract administrator had been guilty of professional negligence in that it had not exercised the degree of skill and care to be expected of an ordinarily competent surveyor. The contract administrator petitioned for judicial review of the decision under Scottish procedural law.
 
The Inner House of the Court of Session confirmed the decision of Lady Paton at first instance and held that the adjudicator's decision was not suitable for judicial review. In particular the contract of engagement between the contract administrator and the employer was for the "arranging for the carrying out of construction operations" within the meaning of section 104(1)(b) of the Construction Act 1996 on the basis that it was in essence "surveying work... in relation to construction operations" within the meaning of section 104(2)(a).
 
The Inner House also rejected a challenge that the adjudicator's decision was made without jurisdiction by reason of the reasons he gave not being intelligible, proper or adequate (where the adjudicator was required to give reasons) with the result that the informed reader of the decision could have had no confidence that the adjudicator had asked himself the right questions in coming to the decision. This was because (1) Such a challenge could only succeed if the reasons were so incoherent that it was impossible for the reasonable reader of the decision to have made any sense of them on the basis that the decision could not be said to be supported by any reasons at all; and (2) In the instant case the adjudicator understood the questions he had to answer and reached comprehensive conclusions in law as to those questions with reasons that were sufficient to show that he dealt with the issues remitted to him.
 
Advice Note
It is noteworthy that the Inner House of the Scottish Court of Session did not dismiss out of hand the challenge that where the adjudicator is under a duty to give reasons for his decision, he might be held to have acted without jurisdiction where the reasons given are so incoherent that it was impossible for the reasonable reader of the decision to have made any sense of them.
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