Wh Malcolm Ltd, Petition Of

The adjudicator's conclusion in the second adjudication that he was not bound by the adjudicator's comments in the first adjudication as to the applicability of SMM7 was one in relation to "the conduct of the adjudication" under the TeCSA rules
 

 

Wh Malcolm Ltd, Petition Of
Scotland, Outer House, Court of Session
Lady Smith
10 November 2010
 
Two adjudications were brought by the sub-contractor against the contractor. The dispute referred to the adjudicator in the sub-contractor’s notice of intention to refer in the first adjudication included a list of fourteen financial claims in respect of fourteen separate items of work but did not state that the dispute being referred was the issue of whether the sub-contract provided that the measurement method SMM7 was applicable. The adjudicator’s decision in the first decision directed the payment of a specified sum to the sub-contractor and stated that SMM7 did not apply to the sub-contract and was not applicable as the method of measurement. The sub-contractor’s notice of intention to refer and referral notice in the second adjudication set out the dispute as being non-payment by the contractor of three items. Both adjudications were conducted under the TeCSA Rules of Adjudication. Notwithstanding that the second adjudication was not yet complete and that the adjudicator had not yet heard argument on whether the sum sought was due the contractor lodged a response document in which it asserted that the correct method of measurement was SMM7 and the adjudicator concluded that he was not bound by the adjudicator’s comments in respect of SMM7 in the first adjudication. The sub-contractor contended that that conclusion on the adjudicator’s part was a decision which could and should be judicially reviewed by way of its petition.
 
Clause 38 of the TeCSA Rules of Adjudication provided that no party, could make any application to the courts in relation to the conduct of the adjudication or the decision of the adjudicator until the adjudicator had made or refused to make a decision and the party making the application had complied with any such decisions.
 
Lady Smith held that the adjudicator’s conclusion in the second adjudication that he was not bound by the adjudicator’s comments in the first adjudication as to the applicability of SMM7 to the sub-contract was one in relation to “the conduct of the adjudication” under clause 38 of the TeCSA Rules of Adjudication. The phrase “the conduct of the adjudication” in clause 38 of the rules of Adjudication should be given a wide interpretation which had regard to rule 38’s overall purpose, namely that no litigation was to be set up as an obstacle to the expeditious
Download