Ritchie Brother (PWC) Ltd v David Philip (Commercials) Ltd (Part I)

Clarification provided as to the time limits for the adjudicator to reach his decision and communicate it to the parties under paragraph 19 of the Scheme for Construction Contracts
 
RITCHIE BROTHER (PWC) LTD v DAVID PHILP (COMMERCIALS) LTD

Scotland, Outer House, Court of Session
Lord Eassie
14 April 2004
 
 
The Scheme for Construction Contracts applied to the adjudication. The employer resisted enforcement of the decision in the contractor's favour on the basis that the adjudicator reached his decision "late" under paragraph 19 of the Scheme. Paragraph 19(1) provides that the adjudicator is to reach his decision (a) 28 days after the date of the referral notice (b) 42 days after the date of the referral notice if the referring party so consented or (c) such period exceeding 28 days after the referral notice as the parties might agree. Paragraph 19(3) provides that as soon as the adjudicator has reached his decision, he is to deliver it to the parties.
 
Lord Eassie held that the "starting date" for the period within which the adjudicator is to reach his decision under paragraph 19(1)(a) and (b) where the referral notice was undated was the date of the claimant's covering letter. This was on the basis that the Scheme clearly contemplates that the starting date is the date when the referring party takes action by sending the referral notice and that where the notice was dated, it was implied that it would be accurately dated.
 
He went on to hold that the date upon which the adjudicator reached his decision for the purposes of paragraph 19(3) of the Scheme for Construction Contracts was the date on which he wrote to the parties by letter and by fax stating that he had that day made his decision. This was on the basis that it was not possible to conclude that a decision was only reached when copies of it had been successfully communicated to the parties. Finally he held that it was not the case that any consent by the referring party under paragraph 19(1)(b) to an extension of the period for the adjudicator to reach his decision from 28 to 42 days had to be given before the expiry of the (initial) 28 day period. This was on the basis that the true construction of the Scheme is that any decision not delivered in accordance with its time stipulations is not null and unenforceable for want of jurisdiction by reason of the provisions of paragraph 19 being directory (rather than mandatory) in nature. Advice Note Lord Eassie in this case took a practical view of the time limits imposed by paragraph 19 of the Scheme for Construction Contracts.
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