St Andrews Bay Development Limited V HBG Management Limited
Scotland, Outer House, Court of Session
20 March 2003
The adjudicator wished to be paid her fees before releasing her decision and faxed her invoice. The claimant contractor indicated its intention to pay her fee and she released the decision two days after the agreed deadline without the fee having been paid. The defendant employer brought judicial review proceedings claiming that the decision was invalid by reason of its lateness.
Lord Wheatley held that the adjudicator was in breach of her statutory and contractual duty to communicate her decision to the parties by the date required by the Construction Act 1996. This was on the basis that a decision could not be said to have been made until it was communicated to the parties insofar as whilst the Act was silent on the communication of the decision by the adjudicator, the obligation to reach a decision had to include a duty to communicate the decision to the interested parties or to communicate it to them within the time limits. The adjudicator was not entitled to delay the communication of her decision to the parties until her fees were paid insofar as (1) There was nothing in the statutory adjudication scheme or in the contract to allow this (2) Whilst it was permissible for there to be a separate arrangement about the payment of fees, it was not permissible for such an arrangement to frustrate or impede the progress of the adjudication and (3) If the adjudicator wished to impose an arrangement as to the payment of her fees on the parties, it was her responsibility to see that it was accommodated within the statutory or contractual time limits.
However, this breach of duty did not render her decision a nullity on the basis that the breach was a technical matter Whilst the adjudicator’s failure to produce her decision within the time limits was undoubtedly a serious matter, it was not a fundamental error or impropriety of sufficient significance to render the decision a nullity.
An adjudicator must release his decision by the time required by the Construction Act or by the parties’ agreement. However, any failure to do so does not render the decision invalid and allow a defendant not to comply with the decision as a result.