Decided Cases Concerning Adjudication

The Highland Council -v- The Construction Centre Group Limited (5 August 2003)

[Case Summary to follow]

Abbey Developments Limited -v- PP Brickwork Limited (4 July 2003)

[Case Summary to follow]

Lovell Projects Limited -v- Legg and Carver (July 2003)

The Defendants argued that they were not bound by the adjudication provisions in the contract by reason of the Unfair Terms in Consumer Contracts Regulations 1999 made pursuant to the European Communities Act 1972, further that they could set off against the Decision.
HHJ Mosley QC considered the judgment in Picardi -v- Cuniberti and held that it had no application to this case where the form of contract was insisted on by the Defendants, who had available both advice from solicitors and from their nominated contract administrator.
The Judge also decided that the parties had agreed by the contract that a set off would only be permitted when a withholding notice had been served. The principle in Bovis -v- Triangle that:
"the decision of an adjudicator that money must be paid gives rise to a second contractual obligation on the paying party to comply with that decision within the stipulated period. This obligation will usually preclude the paying party from making withholdings, deductions, set offs or cross claims against that sum"
applied to this contract to the same extent as it applies to contracts falling within the ambit of the HGCRA.

Hurst Stores and Interiors Limited -v- M. L. Europe Property Limited (25 June 2003)

This was one of those rare cases where the matter proceeded to court following an adjudication and where the Court overturned the adjudicator's findings.
There was a dispute over the Hurst accounts. The Adjudicator had held that the Hurst account was of a binding nature and that no further claims could be made for events which occurred up to the date of the account. This effectively barred Hurst's final account in the sum of some £2.5m.
Hurst said that the documents should not be binding for two reasons. First, the project manager did not have authority to enter into such an agreement and second, the document was entered into on the basis of a unilateral mistake on the part of the project manager and the documents should be rectified so as to remove reference to full and final settlement of claims. Mr Recorder Reese QC agreed and so ML could not be allowed to place reliance on the documents which therefore did not have any binding effect in respect of the claims for delay and disruption that Hurst intended to make.

RSL (South West) Limited -v- Stansell Limited
(16 June 2003)

[Case Summary and Judgment to follow]

Shimizu Europe Limited -v- LBJ Fabrications Limited (22 May 2003)

This adjudication took place under the TeCSA rules. It was held that:
1. The parties had agreed the position as to the contractual relationship between them, namely that their agreement was based on a Letter of Intent. The contractual relationship was not in issue and the adjudicator did not have jurisdiction to matters of contract formation (as he did).
2. Even if that were not the case, the adjudicator should have made clear to the parties that, although they agreed that they had contracted on the basis of a Letter of Intent, he was intending to decide whether or not that was so, and should have given the parties the opportunity to make submissions on the question of contract formation (as opposed simply to the operation or otherwise of the cap on expenditure imposed by that Letter of Intent). By not doing so, the adjudicator acted in breach of the rules of natural justice with the consequence that the court would be slow to give summary judgment to enforce the decision.
3. The TeCSA rules do not operate to oust the jurisdiction of the court to construe an adjudicator's decision and to grant declarations in that regard including (in this case) that the Decision permitted a subsequent withholding to be made.

Orange EBS Limited -v- ABB Limited (22 May 2003)

[Case Summary and Judgment to follow]

City Inn Limited -v- Shepherd Construction Limited (20 May 2003)

[Case Summary and Judgment to follow]

Galliford Northern Limited -v- Markel UK Limited
(12 May 2003)

[Case Summary and Judgment to follow]

Comsite Projects Limited -v -Andritz AG
(30 April 2003)

[Case Summary and Judgment to follow]

The Construction Centre Group Limited -v- The Highland Council (11 April 2003)

[Case Summary and Judgment to follow]

Deko Scotland Limited -v- Edinburgh Royal Joint Venture et al (11 April 2003)

[Case Summary and Judgment to follow]

Hills Electrical & Mechanical PLC -v- Dawn Construction Limited (7 April 2003)

[Case Summary and Judgment to follow]

Trustees of the Harbour of Peterhead -v- Lilley Construction Limited (1 April 2003)

[Case Summary and Judgment to follow]

Beck Peppiat Limited -v- Norwest Holst Construction Limited (20 March 2003)

[Case Summary and Judgment to follow]

St Andrews Bay Development Limited -v- HBG Management Limited (20 March 2003)

The Adjudicator here, who was named as second respondent, was required to make a decision by 7 February 2003. Various extensions were granted to the Adjudicator which left the decision date at 5 March 2003. On 5 March a secretary employed by the Adjudicator's firm informed HBG's solicitors that the Adjudicator had reached a decision but did not intend to release it until her fee had been paid. By a fax sent the following day, HBG indicated its intention to pay the whole of the fee in order to secure the release of the decision. The decision was then released on 7 March 2003 and the reasons for that decision communicated to the parties on 10 March 2003. At no time did HBG seek an extension of time required to produce a decision beyond 5 March 2003. St Andrews claimed that the Adjudicator had no power to reach her decision after 5 March 2003. Therefore the decision sent to the parties on 7 March 2003 was not a valid decision.
Lord Wheatley concluded that a decision cannot be said to be made until it has been actually provided to the parties. Further, in the circumstances of this case, the Adjudicator was not entitled to delay communication or intimation of the decision until the fees were paid. There was nothing in the Scheme or contract to allow this. No alternative arrangement had been made. However, the Judge held that the failure of the Adjudicator to produce the decision within the time limits whilst serious was not of sufficient significance to render the decision a nullity. It was not such a fundamental error or impropriety to render the entire decision invalid.

R. Durtnell & Sons Limited -v- Kaduna Limited
(19 March 2003)

[Case Summary and Judgment to follow]

Harvey Shopfitters Limited -v- ADI Limited
(6 March 2003)

[Case Summary and Judgment to follow]

Vaughan Engineering Limited -v- Hinkins & Frewin Limited (3 March 2003)

[Case Summary to follow]

Pegram Shopfitters Limited -v- Tally Wiejl (UK) Limited (14 February 2003)

Tally declined to pay the sum of £95,483.78 plus interest and the adjudicator's fees arguing that there was no construction contract between the parties or if there was a contract, that the contract was different in content to the contract found to exist by the adjudicator.
Pegram claimed that it was one based on its own conditions of sale whilst Tally claimed that it was one based on the JCT Prime Cost Standard Form of Contract 1998. There were no adjudication provisions in the Pegram standard terms thus on its case, the Scheme would apply.
Here, HHJ Thornton QC found that the parties had entered into a construction contract in such a way that its terms were not clearly and unquestionably capable of being identified. The reason was that the negotiations consisted of a series of offers and counter offers. No complete set of contract documentation was identified. Therefore, the parties had not produced a construction contract whose terms enabled either party to give notice at any time of the intention to refer a dispute to adjudication. As the mandatory requirements for section 108 of the HGCRA had not been complied with, the Scheme applied. Therefore, the Adjudicator had been correctly appointed and had correctly applied the Scheme.

Dumarc Building Services Limited -v- Mr. Salvador Rico (31 January 2003)

[Full Judgment to follow]

Try Construction Limited -v- Eton Town House Group Limited (28 January 2003)

[Case Summary and Judgment to follow]

Costain Limited -v- Wescol Steel Limited
(24 January 2003)

[Case Summary and Judgment to follow]

Levolux A.T. Limited -v- Ferson Contractors Limited (CA) (22 January 2003)

This was a Court of Appeal case. The key issue was whether, pending final resolution by arbitration or litigation, an adjudicator's decision should be enforced notwithstanding that it might conflict with the contractual rights of the parties. In other words, could a "paying party" use, for example, determination provisions to get round an adjudication decision. Thus the case has certain similarities with the Bovis v Triangle case.
Here, clause 29. 8 of the contract provided that if the contractor shall determine the sub-contract for any reason mentioned in clause 29.6 then all sums of money that may then be due or accruing due from the contractor to the sub-contractor shall cease to be due or accrue. Whilst clause 29.9 provided that until after completion of the sub-contract works and the making good of defects, the contractor shall not be bound by any provisions of the sub-contract to make any further payment to the sub-contractor. Ferson claimed that the terms of the contract overrode the obligation to make payment in accordance with the adjudicator's decision. The Court of Appeal emphatically disagreed with this proposition and, agreeing with HHJ Wilcox, dismissed the appeal. LJ Mantell said:
"But to my mind the answer to this appeal is the straight forward one provided by Judge Wilcox. The intended purpose of s. 108 is plain...The contract must be construed so as to give effect to the intention of Parliament rather than to defeat it."

Joinery Plus Limited (in administration)
-v- Laing Limited (15 January 2003)

HHJ Thornton QC held that the decision had the appearance of having been decided by reference to the wrong conditions of contract and without recourse to the correct contractual documentation. Thus the errors were fundamental and not capable of being corrected under any implied power to correct. The question referred was not answered. The decision was a nullity.
The Judge also considered the extent to which regard may be had to an Adjudicator's reasons. If an adjudicator gives any reasons, they are to be read with the decision and may be used for the means of construing and understanding the decision. The Adjudicator had also expressed views in a post decision letter about his decision. The Judge said that strictly these views were irrelevant but they did provide some limited guidance in determining whether any error made by the Adjudicator was substantial so as to effect the validity of his decision.
Laing claimed that JPL had accepted the Adjudicator's decision by accepting payment from Laing of the amount awarded by the Adjudicator. The Judge disagreed. JPL challenged the decision before it received the cheque and informed Laing that it was only accepting the cheque generally on account of Laing's obligations under the subcontract since the Adjudicator had failed to answer the question referred to him. Accordingly, JPL could start a fresh adjudication based on the same dispute originally referred.
Finally, the Judge considered the relevance of JPL's administration. The Judge did not agree that JPL should repay the monies it had received as a condition of taking further action. JPL had a set off and equitable cross claim in the same amount, which was reasonable to allow as a means of defeating the Laing claim. In particular, Laing had already conceded that some money was due to JPL and the Adjudicator, in the abortive adjudication proceedings, had also formed the view that a balance was due.

Hart Builders (Edinburgh) Limited -v- St Andrew Limited (10 January 2003)

[Case Summary and Judgment to follow]

Jamil Mohammed -v- Dr. Michael Bowles (2002)
Mohammed contracted to carry out works to Dr Bowles' residence. Disputes arose and Dr Bowles instigated successful adjudication proceedings under Article 6 of the JCT Minor Works contract. Mohammed refused to pay and Dr Bowles served a statutory demand. Mohammed sought to set the statutory demand aside.
One of the key questions before the court was whether the adjudicator's decision created a debt that could form the basis of the statutory demand, and if so what was the nature of that debt. The Registrar held that, in respect of jurisdiction, the adjudicator had determined that issue and it was not for the bankruptcy court to look behind that decision. More importantly, the Registrar noted that although the applicant could have applied to set aside the adjudicator's decision or sought a declaration on jurisdiction, he had not. Therefore the adjudicator's decision was a debt that was sufficient to form the basis of a statutory demand. The nature of that debt was the binding contractual obligation on Mohammed to pay the sum quantified by the adjudicator's decision, unless and until varied by arbitration or legal proceedings. It was not disputed on substantial grounds.

As a result the application was dismissed with costs.

Picardi (t/a Picardi Architects) v Cuniberti & Anor
(19 December 2002)

HHJ Toulmin CMG QC had to consider a fee claim made by the Claimant Architects against the Defendants following the refurbishment of their private dwelling house in London. Picardi had an Adjudicator's decision in their favour.
Picardi claimed that the contract between the parties incorporated the RIBA Conditions of Engagement and the model adjudication procedure published by the CIC. The Judge found that no such agreement was made. Therefore, the Adjudication was invalid.
The Judge also separately considered whether Picardi should have drawn the Cuniberti's attention to specific clauses of the RIBA conditions as required under the RIBA Notes of Guidance. He commented that - particularly because Parliament had specifically excluded private dwelling houses from the adjudication legislation - a provision including adjudication as part of a contract, was an unusual provision which therefore ought to be brought to the specific attention of a lay party if it is later to be validly invoked.

A -v- B (17 December 2002)

In this Scottish case (the company names were not given), Lord Young had to consider an application by A to enforce an adjudicator's decision, awarding them loss and expense totalling £639,151.82.
B argued that the contract prohibited A from raising any action to enforce the award until either termination of the present sub-contract or actual completion of the last phase of the main contract. Appendix 8 of the subcontract stated that no party shall, save in the case of bad faith, make any application whatsoever to a court in relation to the conduct of the adjudication and the decision of the adjudicator until completion of the contract or termination of the sub-contract.
A argued that this clause was not concerned with challenges to the decision by way of judicial review but enforcement. The Judge, in a decision very much in line with the thinking of the CA in Levolux, agreed. An adjudicator's decision when pronounced is legally binding on the parties. Since an obligation arising out of a decision is binding, it must be capable of enforcement. The clause in the contract related only to judicial review of a decision - not to proceedings to enforce that decision.
Alternatively, B relied on the fact that the adjudicator had awarded an extension of time of only 46 weeks, when 112 weeks was sought. Consequently, B maintained that A was in delay for a period of 66 weeks, which would attract LADs at a rate of £75K per week. In relation to this second argument, Lord Young noted that B did not, during the adjudication, assert that they were entitled to LADs if the Adjudicator failed to award A the full extension of time sought. B merely contested the EoT claim, admittedly with some success. However, making a claim for LADs is different to challenging a claim for an extension of time. Different questions arise, for example, is the sum claimed as LADs a penalty? Therefore, this argument failed.

Ballast plc -v- The Burrell Company (Construction Management) Limited (17 December 2002)

Lord Johnston gave Judgment in the Scottish Court of Appeal in an appeal brought by Ballast Plc.
The original complaint was that the Adjudicator's decision did not determine the dispute as originally referred and identified in the Notice. As a consequence the decision was a nullity. Lord Johnston affirmed the original decision of Lord Reed and in doing so stressed the importance for adjudicators of answering the question actually put in the Notice of Adjudication. He noted that:-
" As regards jurisdiction...it is our opinion that the Adjudicator, while restricted to issues focussed in the dispute, has nevertheless both the power and duty to determine whether or not a claim that it put forward in respect of valuation of work done is validly asserted under the contract. He must answer that question either in the affirmative or the negative. He cannot decline to address it, which is what the Adjudicator in fact did in this case. [The power of the Adjudicator] is based on the notice of the dispute which identified the question which the Adjudicator had to address. Thereafter, it was his duty in addressing that question to consider the validity of each and all of the claims put forward, which in turn would require him to consider the basis upon which they were being asserted. If not contractually based, they must inevitably fail - either in whole or in part."
Here the adjudicator had considered that his powers were limited to considering the strict contractual terms between the parties. Therefore by limiting himself thus, he had not considered the reality of the situation between the parties and in doing so had failed to consider the "whole dispute" which had been referred to him.

Baldwins Industrial Services plc -v- Barr Limited
(6 December 2002)

A contract for the supply of a mobile crane plus driver was a contract for construction operations. The provision of the driver made the significant difference. Although the contract did not make any direct reference to the work to be carried out, taken together the crane and driver were to be used for building operations. This specific point is unlikely to crop up again since the latest version of the CPA Model Conditions, in effect from July 2001, includes an express provision that the Scheme for Construction Contracts applies.
Although Judgement was given in favour of Baldwins, Her Honour Judge Kirkham followed the principles laid down in the cases of Herschel Engineering v Breen Property and Rainford House v Cadogan, in deciding to grant a stay of execution. Where there is a potential counterclaim and the strong possibility that a claimant will be unable to repay any monies which are found to be have been wrongly paid over, then discretion will be exercised in favour of granting a stay. Here Barr were required to pay the adjudicator's award into court and commence proceedings within one month failing which the money was to be paid out to Baldwins. The stay of execution did not apply to the costs and fees of the adjudication.

Skanska Construction UK Limited -v- The ERDC Group Limited & anr (28 November 2002)

Skanska sought to have an adjudication suspended by challenging the adjudicator's jurisdiction to hear the dispute. The adjudication was the second adjudication brought by ERDC against Skanska, who claimed it centred on a dispute, which was "the same or substantially the same" as the first dispute. Accordingly, Skanska said that it could not be adjudicated and invited the adjudicator to step down. He refused.
The first adjudication had arisen from a dispute over an interim application, whilst the second arose following ERDC's final account submission. Skanska argued that in essence both disputes concerned the quantification of the loss and expense element of ERDC's claim. ERDC argued that it was quite different to the interim valuation dispute, albeit that it did concern similar claims and sums. Since the first adjudication, significant further information and supporting documentation had both come to light and been exchanged. Further the second adjudication centred on different sub-contract clauses and so would proceed upon a different basis.
Both the second adjudicator (deciding his own jurisdiction) and the judge hearing the petition agreed with ERDC's arguments. Lady Paton, agreeing with the Sherwood decision, refused Skanska's petition stating, that in the second adjudication "a different stage in the contract has been reached; different contractual provisions apply; considerably more information may be available by the date of issue of the final account; and different considerations and perspectives may apply." Thus the fundamental nature of the dispute would be fundamentally different.
Skanska also raised a side argument that the sub-contract had required that documentary evidence and details of any loss and expense be provided within 6 months of Practical Completion date and as such ERDC had been out of time in supplying this information. Lady Paton again agreed with ERDC and held that for such a stringent time bar to apply, the sub-contract would have had to be expressed in clear and unambiguous language. Here, the sub-contract only set out a timetable. In any event, Skanska's conduct during the first adjudication had been such as to have waived any right to maintain the time bar argument.

Cowlin Construction Limited -v- CFW Architects
(15 November 2002)

[Case Summary to follow]

Bovis Lend Lease Limited -v- Triangle Development Limited (2 November 2002)

In this case, HHJ Thornton QC had to consider whether a party could withhold against a sum directed to be paid by an adjudicator following three adjudications between the parties. The Judge concluded by setting out a number of factors that must be in place before such a withholding can be made:
· The decision of an adjudicator that money must be paid gives rise to a separate contractual obligation. The paying party must comply with that decision within the stipulated period. Usually the paying party cannot withhold, make a deduction, set-off or cross-claim against that sum.
· To withhold against an adjudicator's decision, an effective notice to withhold payment must usually have been given prior to the adjudication notice being given and been ruled upon and made part of the subject matter of that decision.
· However, if there are other contractual terms which clearly have the effect of superseding, or providing for an entitlement to avoid or deduct from, a payment directed to be paid by an adjudicator's decision, those terms will prevail.
· Equally, where a paying party is given an entitlement to deduct from or cross-claim against the sum directed to be paid as a result of the same, or another, adjudication decision, the first decision will not be enforced or, alternatively, judgment will be stayed.
Here, Triangle, who had determined Bovis' contract for failing to proceed regularly and diligently, was found to be entitled to rely on both the contract and the adjudicator's third decision (that the determination was valid) to withhold payment of the sum directed to be paid under the adjudicator's first decision. Bovis' contention (namely that the determination of its employment was invalid) was not sufficient, in the absence of either an adjudicator's decision to that effect or, alternatively, any sufficient evidence to sustain that contention, to enable them to counter this.

The Construction Centre Group Limited -v- The Highland Council (23 August 2002)

Here Lord Macfadyen had to consider a dispute arising in relation to the Small Isles and Inverie Ferry scheme. The defenders resisted payment of an adjudicator's decision in the sum of £250k.
By clause 66 of the contract, the parties had to give "effect forthwith to every decision of ... the Adjudicator on a dispute given under this clause" unless that decision was revised by agreement or the dispute had been referred to arbitration and an arbitral award had been made. The Highland Council argued that the effect of awarding summary judgment would be to give a final judgment in place of an interim decision. Lord Macfadyen disagreed, saying that not to allow enforcement would obstruct the purpose of section 108 of the HGCRA. One of the points of adjudication was to obtain payment on a provisional basis. CCGL were not asking the Court to endorse the soundness of the adjudicator's decision but were asking the Court to recognise that the parties had committed themselves contractually to implement that decision.
The Highland Council also argued that as they had a claim against CCGL for the payment of liquidated damages (quantified at a sum in excess of £250k), they were entitled to refuse to pay the sum awarded. A valid notice had been served in pursuant to section 111 of the HGCRA. CCGL argued that as the liquidated damages claim could have been advanced before the adjudicator, the Highland Council could not rely on it now to resist enforcement. Further, CCGL submitted that section 111 referred to notices in relation to payment certificates and not to notices in respect of adjudicator's decisions.
Lord Macfadyen held that as the Highland Council had chosen not to advance their retention argument before the adjudicator, they could not rely upon it now. That said, the right of retention was not lost and that right remained against any future sum, which might fall due to CCGL under the contract. However, there had been nothing to prevent the Highland Council from putting forward their claim for liquidated damages in the adjudication. It was now too late. Section 111 was not intended to permit the giving of a withholding notice in respect of an adjudicator's award.
Lord Macfadyen concluded that "it would...be destructive of the effectiveness of the institution of adjudication if a responding party could decline to put forward an available defence in the course of the adjudication, then give a section 111 notice seeking to withhold on that ground the sum awarded by the Adjudicator".
Petition of Edinburgh Royal Joint Venture (2 August 2002)
Here the Edinburgh Royal Joint Venture had resisted payment following an adjudicator's decision in favour of Broderick Structures Ltd. The adjudication rules were based on the 1998 ORSA Rules. One amendment stated that no party should make any application whatsoever to a competent court in relation to the conduct of the adjudication or the decision of the adjudicator until completion of the last phase of the works or termination of the sub-contract and until the prior written consent of both contractor and sub-contractor had been obtained. However, the adjudication rules also stated that every decision of the adjudicator was to be implemented without delay and the parties "shall be entitled to summary enforcement" of an Adjudicator's decision regardless of whether it was subject to any challenge or review.
ERJV claimed that the adjudication rules meant that all disputes were to be postponed (and this included enforcement of any adjudicator's decision) until after conclusion of the contract, such that they could all be raised at one time. Coutts QC considered that this position was unsound and selective in that it did not take account of all of adjudication rules and therefore could not be sustained. Broderick were not seeking to challenge the decision of the adjudicator, but merely to enforce their contractual rights. A distinction was made between an application to the Court after completion of the work, and an application for summary enforcement of an adjudicator's decision made during the work.

J T Mackley & Company Limited -v- Gosport Marina Limited (3 July 2002)

In this case, HHJ Seymour QC had to consider an attempt to refer a dispute under an ICE contract to arbitration. Previously there had been two adjudications under the contract which had been favourable to Mackley. Gosport, the Employer, sought to arbitrate the disputes.
However, clause 66(6) of the ICE Conditions states that a decision of the engineer was a condition precedent to the entitlement of a party to a contract to refer a dispute to arbitration. Here there had been no reference of the dispute to the engineer, who had had no part in the adjudication.
HHJ Seymour held that the requirement for a decision of the engineer under clause 66(6) applied even where a party was seeking to challenge the decision of an adjudicator. References to arbitration had to be made in accordance with the relevant arbitration clause.
The Judge held that the form of words of section 108 of the HGCRA:
"makes it plain...that arbitration is only available as a means of challenging the decision of an adjudicator if the relevant contract so provides or an ad hoc arbitration agreement is made. Where it is sought to rely on an arbitration clause in the relevant contract, it seems to me to be obvious that the ability to do so, and the terms upon which such may be done, fall to be determined under the relevant arbitration clause."
Therefore although the matters had been the subject of an earlier adjudication, under the terms of this contract, a reference to the engineer had to be made before any reference to arbitration could be contemplated.

Gillies Ramsay Diamond -v- PJW Enterprises Limited (27 June 2002)

Lady Paton, in Scotland, had to consider an adjudication concerning a professional negligence claim. PJW employed Diamond as contract administrators on a refurbishment contract in Glasgow. During the course of the works a dispute arose which resulted in the termination of Diamond's appointment. PJW employed others in Diamond's place, brought a claim for professional negligence against Diamond and then referred that claim to adjudication.
The adjudicator found against Diamond who resisted paying, claiming that the adjudicator did not have the power to award damages and that an appointment as a contract administrator was not a construction contract as defined by the HGCRA. Lady Paton held that Diamond's contract administration services qualified as surveying work thereby falling within the HGCRA. By agreeing to carry out contract administration services, Diamond had entered into an agreement to do surveying work.
It is interesting that although Lady Paton expressed doubts about the merits of the decision, she concluded that she could not interfere with that decision. Lady Paton recognised the potential difficulties caused by the short time limits imposed by adjudication but stated:
"There is nothing in the 1996 Act...in precedent or principle, to suggest that an adjudicator seeking to resolve a dispute...is not entitled to reach conclusions about the manner in which a professional person has carried out his or her duties in the course of the construction contract - and that includes conclusions as to whether there might have been any professional negligence. ...While therefore, it may on one view seem startling that a professional person acting as an adjudicator should be invited to rule within 28 days on the important and often difficult and delicate question as to whether a fellow professional has failed in his or her duty to such extent that there has been professional negligence, yet it seems that a proper construction of the statutory language...permits this very result - although importantly, a "provisional interim" result."
Thus Lady Paton has provided judicial confirmation that there is nothing to stop a claim of professional negligence being made in an adjudication.

Impresa Castelli SpA -v- Cola Holdings Limited
(2 May 2002)

HHJ Thornton QC had to consider various issues concerning the interpretation of a contract, which incorporated the 1981 JCT Standard form with Contractor's Design. These included whether the court had jurisdiction to consider a number of the claims in relation to defects. The contract had a complex dispute resolution procedure. This provided that certain disputes, (including whether the works were carried out in accordance with the contract), arising prior to Practical Completion, could not be referred to arbitration but adjudication. Following that adjudication, the result could be arbitrated but only once Practical Completion had been achieved. An "adjudication matter" could not be arbitrated upon unless there had been an adjudication first. Equally no adjudication could arise once practical completion had occurred.
Impresa said that the Cola's counterclaim, based on breaches of contract that lead to defective work, was covered by the adjudication provisions of the contract. As they had not been adjudicated, they could not be arbitrated (or litigated since it appears that the right to arbitrate had been waived). HHJ Thornton QC rejected this argument. First, the disputes about the existence and effect of the alleged defects came to light after termination of the Works. The dispute was about damages recoverable as a result of that termination. Second, the dispute related to whether works had been executed in accordance with the contract conditions and not whether the works were being executed in accordance with the contract conditions. The adjudication provisions in the contract related to works that were ongoing and not the state of works once that work had been completed or terminated.

R G Carter Ltd -v- Edmund Nuttall Ltd (18 April 2002)

R G Carter sought an order that the appointment of an Adjudicator should be revoked and that some other person should be appointed in his place or a similar declaration in undefined terms. Carter had referred a dispute under a DOM/1 subcontract to adjudication specifically asking the RICS not to appoint the particular adjudicator it had subsequently appointed.
The grounds for the declaration were that the adjudicator (it was claimed) appeared to have pre-judged the issue before the matter was referred to him and furthermore had expressed a willingness to proceed to a Decision without the matter having been referred to him.
HHJ Bowsher QC refused to grant the relief sought, but in relation to second ground, provided guidance as to what was required before a Decision could be made:
"RG Carter Limited also object that Mr Richards has indicated a willingness to decide the dispute without having received a Referral Notice from RG Carter Limited. The scheme of the contract, like the scheme set out in the Schedule to the HGCRA 1996, provides that first a notice of adjudication is sent to the respondent and to the adjudicator and then not more than 7 days later a Referral Notice is sent to the Adjudicator and the respondent. In litigation terms, that is rather like the service of a Claim Form followed by a Statement of Case, or in old fashioned terms, a Writ followed by a Statement of Claim. Mr Furst QC for Edmund Nuttall Limited says that Mr Richards is in a quandary about how to proceed. I do not know how he knows that, Mr Furst QC submits that the adjudicator has a duty to proceed and that the referring party, R G Carter Limited, cannot stop the adjudication by failing, in breach of contract, to serve a Referral Notice. Mr Richards seems to have decided that he should go ahead and determine the dispute referred to in the Notice of Adjudication without a Referral Notice. That is like a judge saying that he is going to try an action having received only a generally indorsed writ without a Statement of Claim or a Defence.... The adjudicator has not received the "referral" nor any accompanying documentation and so the time for the giving of his decision has not begun to run and he has no further duty or jurisdiction."

Balfour Beatty Construction Ltd -v- The Mayor and Burgesses of the London Borough of Lambeth
(12 April 2002)

Balfour Beatty sought to enforce the decision of an adjudicator in relation to an extension of time and loss and expense claim, and the application was opposed by Lambeth on the grounds of bias and breach of contract by the adjudicator in that he had employed others to carry out some of his tasks.
In the adjudication, the Referral did not include a critical path analysis in the accepted sense nor a reliable as-built programme, so the Adjudicator requested further details from both parties and also proceeded, with the help of colleagues, to check the as-built information adduced and to produce his own critical path analysis.
HHJ Lloyd QC observed that:
"It is now well established that the purpose of adjudication is not to be thwarted by an overly sensitive concern for procedural niceties ... Adjudication under the HGCRA is necessarily crude in its resolution of disputes. Errors of fact and law do not vitiate the decision which has to be complied with, unless of course it was not authorised and thus made without jurisdiction. On the other hand adjudication under the JCT conditions (which are typical of other forms) envisage that some basic procedural principles have to be applied in order that each party is treated fairly."
HHJ Lloyd QC went on say that:
"...in my judgment, the adjudicator not only took the initiative in ascertaining the facts but also applied his own knowledge and experience to an appreciation of them and thus, in effect, did [Balfour Beatty's] work for it.... In my judgment Mr. Richards exceeded his jurisdiction by himself making good fundamental deficiencies in [Balfour Beatty's] material, namely the lack of a critical path and the method of analysis adopted for demonstrating the criticality or otherwise of the Relevant Events.... In my judgment constructing (or reconstructing) a party's case for it without confronting the other party with it is such a potentially serious breach of the requirement of either impartiality or fairness that the decision is invalid for it is a not a decision which the adjudicator was authorised to make."
HHJ Lloyd QC also found on the facts that the adjudicator had informed the parties that he intended to use assistants to carry out some of his tasks, so the ground to resist enforcement did not appear to have any prospect of success.

Parsons Plastics (Research & Development) Ltd -v- Purac Ltd (CA) (12 April 2002)

The Court of Appeal had to consider an appeal from the judgment of HHJ Kirkham. Parsons had been successful in an ad hoc adjudication carried out in accordance with the terms of the sub-contract and not pursuant to the HGCRA.
Six days after the adjudicator's decision was given and before paying any money pursuant to that decision, Purac served a withholding notice pursuant to the contract. Purac claimed that the costs to complete the works exceeded the sum owing under the adjudication decision. The CA, agreeing with the Judge, held that under the terms of this particular contract it was open to Purac to set off against the adjudicator's decision any other claim they had against Parsons, as long as that claim had not been determined by the adjudicator.

Chamberlain Carpentry & Joinery Ltd -v- Alfred McAlpine Construction Ltd (25 March 2002)

HHJ Seymour QC had to consider arguments being made by McAlpine to resist enforcement of an adjudicator's decision. The Chamberlain Notice of Adjudication listed eight heads of claim. Thus McAlpine argued that Chamberlain had sought to refer not a single dispute but a number of disputes. HHJ Seymour QC (just as HHJ LLoyd QC had in McLean v Swansea) accepted that it is possible to contemplate a substantial dispute with a number of different elements. Here it was plain that the dispute referred by Chamberlain was how much it was due to be paid by McAlpine.
McAlpine had included its own adjudication rules as part of the contract. These included that the referring party (provided it was not McAlpine when each party would bear their own costs) should be responsible for all of the costs incurred by all of the parties in the adjudication on a full indemnity basis. Thus one of Chamberlain's requests, following these rules, was that the adjudicator made an assessment of the costs incurred by McAlpine. McAlpine said this was a separate dispute. The Judge disagreed saying that requesting an assessment of costs was a natural consequence of the referral.
Finally McAlpine suggested that, since the adjudicator had to go "hunting through" the material presented to him by Chamberlain to find out which the relevant interim application was, the dispute had not been identified with sufficient clarity. This was given short shrift, although of course any documentation should be submitted to an adjudicator in as "user-friendly" a way as possible.

Edmund Nuttall Ltd -v- R G Carter Ltd
(21 March 2002)

HHJ Seymour QC refused to enforce the decision of an adjudicator since he had no jurisdiction.
When Nuttall commenced adjudication proceedings, the notice included a claim for an extension of time based on a claim document prepared in May 2001. When the Referral Notice was served, it included a delay analysis prepared by an expert on behalf of Nuttall, which made a claim for an identical extension of time. However, the justification for the extension was different to that put forward in the May claim.
The question the Judge had to answer was not whether there was a dispute between Nuttall and Carter as at the date of the Adjudication Notice, but whether the dispute upon which the adjudicator adjudicated was that which was the subject of the Adjudication Notice. The Judge rejected the submission that the dispute should be identified by reference, at least principally, to what was being claimed. Nuttall suggested that it was enough that the extension of time being sought was always the same and irrelevant that the facts and arguments relied upon in the expert report were significantly different from the facts and arguments relied upon in the previous claim.
The Judge said:
"the whole concept of adjudication is that the parties to an adjudication should first themselves have attempted to resolve their differences by open exchange of views and, if they are unable to, they should submit to an independent third party for decision the facts and arguments which they have previously rehearsed amongst themselves. If adjudication does not work in that way there is the risk of premature and unnecessary adjudications in cases in which, if only one party had had a proper opportunity to consider the arguments of the other, accommodation might have been possible".
Here, as the adjudicator had considered the expert report, the Judge ruled that he had considered and made decisions upon something which had not been referred to him for a decision. The decision was made without jurisdiction and was therefore unenforceable.

RJT Consulting Engineers Ltd -v- DM Engineering (Northern Ireland) Ltd (CA) (8 March 2002)

The judgment if the Court of Appeal is important because it helps to clarify the requirement of Section 107 of the HGCRA, namely that to take advantage of adjudication, the relevant construction contract must be in writing or, at least, evidenced in writing.
At first instance, HHJ MacKay had taken what he termed to be a "purposive" approach to considering whether a contract was evidenced in writing. He had held that it was not necessary to identify all the terms of a contract and that since there was in this case a "comparatively great" amount of written material this would suffice. This material included a fee account, which identified the parties and place of work and meeting minutes, which identified the type of work being carried out.
The Court of Appeal disagreed with HHJ MacKay's approach. Invoices, for example, are evidence of the existence of a contract. They do not define it. The whole of the agreement had to be evidenced in writing. The CA said that:-
"Certainty is all the more important when adjudication is envisaged to have to take place under a demanding timetable. The Adjudicator has to start with some certainty as to what the terms of the contract are…The written record of the agreement is the foundation from which a dispute may spring but least the Adjudicator has to be certain about is the terms of the agreement which is giving rise to the dispute."
A record of an agreement must be a record of a complete agreement. However one of the Appeal judges, Auld LJ had a slightly different view. He considered that it was the terms of the agreement material to the issue or issues giving rise to the dispute, which were important, not that every term however trivial must be expressly recorded or incorporated.

Watkin Jones & Son Ltd -v- Lidl UK GMBH
(February 2002)

In a previous adjudication, Watkin Jones had been awarded almost £350k on the basis that no notice had been served by Lidl against application 11 in accordance with clause 30.3.3 of the JCT Standard Form of Contract with Contractor's Design. By clause 30.3.5, without such a notice, the sums applied for became due and payable.
Lidl said that the new dispute related to the question of what was the properly calculated sum due under application 11. HHJ LLoyd QC held that the subject matter of the new adjudication was a dispute about the value of application 11. That issue had been resolved in the first adjudication where the adjudicator had considered the application for payment and the terms of the contract. Accordingly, there was no dispute.

Total M&E Services Ltd -v- ABB Technologies Ltd
(26 February 2002)

HHJ Wilcox had to consider an application for the enforcement of a decision where ABB held that the Adjudicator had no jurisdiction to determine the dispute because the Notice of Adjudication had been given in the name of a different company. HHJ Wilcox rejected this argument since at all times both parties had been well aware at all stages of the true identity of the contracting party. No one had been misled. However he did caution parties to be careful where there are similar company names or a number of subsidiaries in a group of companies. Here precision might well be required.
Total had also tried to recover their costs of the adjudication as a separate head of damage. These costs were considerable, being almost £93k - Total having been awarded £462k in the adjudication. It was suggested that if a party fails to pay under a construction contract than it was foreseeable that the other party to that contract would go to adjudication and incur costs. HHJ Wilcox did not allow this. There was no provision in the HGCRA for the recovery of the costs of an adjudication. Therefore, they could not be recovered as damages. To allow such a claim would be to "subvert" the Scheme.
ABB claimed that the adjudicator did not have any jurisdiction to base his decision on additional works carried out by Total. These were a series of separate oral agreements. Again the Judge disagreed. The additional works were the same type of work, which was the subject of the original sub-contract. Thus the scope of that work was enlarged. S107(3) of the HGCRA refers to agreements made otherwise than in writing. Provided that the agreement refers to terms, which are in writing, then it is an agreement in writing. This was a contract varied orally by the parties. The contract as varied fell within the scope of S107.
Finally, at the end of his judgement HHJ Wilcox ordered that ABB pay into court (and not direct to Total) pending a full hearing, that part of the claim which related to a set off claim by ABB. The adjudicator had refused to consider the merits of that part of the claim in the absence of a valid withholding notice.
Solland International Ltd -v- Daraydan Holdings Ltd (15 February 2002)
Daraydan resisted a claim for summary enforcement of an adjudicator's decision on the grounds that it was entitled to raise now matters said to be relevant to what sum should be paid as a result of an adjudicator's decision.
Daraydan claimed a right to set off a claim for liquidated damages under a related contract, which exceeded the total amount awarded. It also maintained that it had a claim for allegedly defective works and it was entitled to abate the sums awarded by the adjudicator by the amount of these claims, which were disputed by Solland.
HHJ Seymour QC held that the fact that there were apparently other disputes between the parties did not constitute any reason not to enter judgment for the sums awarded by the adjudicator. The parties had entered into a contract, which said that the decision of an adjudicator was binding pending final determination by the Court. There was no provision in that contract to set off or deduct against that award.
The judge was also asked to stay enforcement on the grounds that the adjudicated dispute was but one of a series of complex disputes concerning far greater sums than current one. He declined to do so. The question here was who should hold the money, which the adjudicator had decided, should be paid to Solland while the disputes between the parties were resolved. On the facts here, "the function of the Court" was to enforce that decision.

C&B Scene Design Concept Ltd -v- Isobars Ltd (CA) (31 January 2002)

The Court of Appeal overturned the first instance judgment of Mr Recorder Moxon-Browne QC.
Unfortunately, although the CA recognised that the question of whether failing to give a withholding notice within the stipulated of time was one of some importance to the construction industry and one where there has been a difference of judicial opinion, they did not think it right (in the absence of argument from Isobars who were not represented) to express a view which would only be obiter (i.e. not binding).
Instead, the only question, which the CA believed, it was necessary to consider was whether the error on the part of the adjudicator, who had failed to appreciate that the contractual provisions had been superseded by the Scheme, went to his jurisdiction or was merely an erroneous decision of law on a matter within his jurisdiction.
It is only when the adjudicator decides matters beyond the dispute referred that he has no jurisdiction. Here the scope of the dispute was agreed, namely the employer's obligations to make payment or otherwise. Thus the adjudicator had to resolve as a matter of law whether certain contractual clauses applied or not and if they did what the effect was of the failure to serve a timeous notice. Whist the adjudicator was as a matter of law incorrect, that error was within the scope of the dispute agreed between the parties. The adjudicator therefore answered the right question but in the wrong way and the claimant was therefore entitled to enforcement of the adjudicator's decision by means of summary judgment.

Karl Construction (Scotland) Ltd -v- Sweeney Civil Engineering (Scotland) Ltd (Appeal)
(22 January 2002)

The Appeal Court upheld the judgment at first instance and the decision of the adjudicator.
Since the original Judgment, Sweeney had gone into liquidation. Karl's position was that the dispute referred to the adjudicator had changed as a result of Sweeney's written response to points made in the adjudication by Karl. Quite simply, the CA disagreed with this contention stating it to be unsound. The adjudicator had been charged with ascertaining the law and therefore had no option but to apply the relevant law as she saw it.
Shimizu Europe Limited -v- Automajor Limited (17 January 2002)
HHJ Seymour QC had to consider whether an adjudicator had exceeded his jurisdiction. Part of the award related to alleged variations. Included in the calculations of these variations were amounts in respect of alleged variations to smoke ventilation works. This was notwithstanding that the adjudicator did not consider that there had been any variation in those works.
Automajor believed that this represented an error, which went to the jurisdiction of the adjudicator. Accordingly, the Adjudicator was invited to amend his decision pursuant to the slip rule
HHJ Seymour QC commented that if the Adjudicator had made an error, and he did not say that he necessarily had, then the proper mechanism for correcting that error was either in the course of final account negotiation or by referring the dispute to arbitration.
Here, Automajor had only paid up that part of the decision, which they did not challenge. HHJ Seymour QC commented that it could not be right that it is open to a party to an adjudication to both "approbate and to reprobate a decision of the adjudicator." Either the whole of the relevant decision must be accepted or the whole of it must be contested.
That said, HHJ Seymour QC continued, if an adjudicator had a made decision both on the question of how much money is due to a party and as to what (if any) extension of time a party is entitled, it may be open to a party to that adjudication to accept the determination in relation to the sum due but to dispute the assessment of the extension of time or vice versa. Here, two separate questions had been referred to the adjudicator. However, what you cannot do is challenge part of a financial award or part of an extension of time decision.
Finally, HHJ Seymour QC held that, Automajor by inviting the adjudicator to correct the award under the slip rule, had accepted that the award was valid. The invitation to correct the award could only be consistent with recognising that award as valid. Presumably, therefore, Automajor would have been estopped from challenging the jurisdiction had their other arguments succeeded.

Isovel Contracts Ltd (in Administration) -v- ABB Technologies Ltd (30 November 2001)

Deputy Judge Berry QC was invited to extend the principle of set off in insolvency cases from companies in liquidation to companies in administration.
When the CA heard the case of Bouygues v Dahl-Jensen, it held that where there were latent claims and cross claims between the parties, Rule 4.90 of the 1986 Insolvency Rules would apply to provide for a mutual set off. In such circumstances, summary judgment was not the appropriate way to proceed. Dahl-Jensen had of course, gone into liquidation. Here, the DJ awarded summary judgment in favour of the claimant, but refused to stay the judgment hearing pending the hearing of a cross claim. Although the case related to payment of certificates under a DOM Sub-Contract, there had been no adjudication and the Deputy Judge was not persuaded that the Herschel principle (that a stay may be granted if there was a real doubt as to the claimant's ability to repay if it subsequently loses a related action) applied here.

Oakley and Anr. -v- Airclear Environmental Limited and Anr. (October 2001)

Etherton J had to consider an application to set aside a statutory demand. Although the parties had intended to enter into to the NAM/T form of contract, no formal contract was ever concluded. Oakley paid Airclear after deducting various sums for delay costs and other items. Airclear did not agree with this.
Airclear then referred the dispute to adjudication in which Oakley took no part. The adjudicator decided that Oakley should pay Airclear. Oakley did not pay. Airclear issued a Statutory Demand. Oakley applied to set that aside arguing that as there was no contract, the adjudicator did not have jurisdiction, having been appointed pursuant to a contract or that if there was a contract it was not in writing, as required by Section 107 and so the debt was disputed.
Etherton J held that the judge was entitled to find that the parties shared an assumption that the agreement was governed by NAM contracts. However, although Oakley could have been stopped from resiling from that assumption, there was insufficient evidence to show that it was unconscionable for Oakley to do so. Thus the adjudicator had not been validly appointed and his decision was a nullity. As a result the Statutory Demand could not be based on a debt and so the Demand was set aside.

Stubbs Rich Architects-v- W H Tolley & Son Limited (August 2001)

An adjudicator's fees fall within the words "anything done or omitted in the discharge or purported discharge of his functions as adjudicator." These fees may be challenged if, and only if, the adjudicator has acted in bad faith.
The criterion of the reasonably competent solicitor is not a relevant test in determining the reasonableness of an adjudicator's fees. A court must be very slow indeed to substitute its own view of what constitutes reasonable hours.

Maxi Construction Management Ltd -v- Mortons Rolls Ltd (August 2001)

The pursuers contended that it was entitled to an interim payment in terms of a document which it characterised as "Application for Payment No. 10".
Lord Macfadyen held that the application did not constitute a "claim by the payee" within the meaning of paragraph 12 of the Scheme,
a. because it was an application for agreement of the pursuer's valuation in terms of paragraph 2.5.20 of the Employer's Requirements, and not a claim for payment at all, and
b. because it did not, in any event, comply with the requirements of paragraph 12 of the Scheme in that it did not specify the basis on which it was calculated.
Further the application did not meet the specific contractual requirements of an Application for Interim Payment nor the requirement that it be accompanied by a detailed build-up of the values of the work executed.

Millers Specialist Joinery Company Ltd -v- Nobles Construction Ltd (August 2001)

Section 111 does not apply only for the purposes of adjudication.
The claimant sought summary judgment in respect of ten unpaid invoices.
HHJ Gilliland QC said, "the effect of Section 111 is to prevent the paying party if he does not give appropriate notice from exercising his right to retain or withhold payment of monies which would otherwise be due and payable, but for the existence of some right to withhold payment. Section 111 refers to "withholding" payment generally. It must have been intended to include situations where the paying party was legitimately entitled under the general law under the terms of the contract to withhold monies which were otherwise payable".
The Judge concluded that the claimant would not have been entitled to summary judgment on the merits of the claim. However, he gave summary judgment because no valid withholding notice had been given under Section 111.

Gibson Lea Retail Interiors Ltd -v- Makro Self-Service Wholesalers Ltd (July 2001)

In Section 105(3) of the HGCRA "fittings forming part of the land" was a reference to fixtures. Gibson Lea's work involved shop fitting.
HHJ Seymour QC thought it clear that shop-fitting did not amount to construction operations unless it consisted of the construction of "structures forming, or to form, part of the land (whether permanent or not)" or "installation in any building or structure of fittings forming part of the land", as per sections (105)(1)(a) and (c) of the HGCRA. None of the items supplied by Gibson Lea were fixtures. The Act did not apply.

City Inn Ltd -v- Shepherd Construction Ltd
(July 2001)

Court proceedings are not an appeal against the decision of an adjudicator.
The defendant had argued that the effect of the adjudicator's award of a five-week extension of time was that City Inn had to demonstrate that the award was not justified.
Lord Macfadyen confirmed that adjudication provided for an interim determination of the issues between the parties. Should the dispute ultimately go to litigation or arbitration then the matters will be decided afresh as if there had been no adjudication.

British Waterways Board (Judicial Review)
(July 2001)

This was an action for judicial review. The petitioners submitted that there was no "dispute" between the parties, having regard to the terms of the contract between them. The joint venture maintained that there was a dispute within the meaning of section 108 of the Housing Grants, Construction and Regulations Act 1996 and that any provision in the contract that purported to redefine a "dispute" fell to be disregarded, in the light of section 108(5).
Having decided that there was an arguable case as to whether there was a dispute the Court then had to decide whether, on the balance of convenience, the Court should not permit an adjudication to proceed pending resolution of that case.
Lord McCluskey refused to disallow the adjudication on the basis that both the 1996 Act and the substituted Clause 90 envisaged the desirability of proceeding to a speedy resolution of matters in issue. If the matter was not already in issue, as argued, it could be put in issue without delay, but the resolution thereof would be delayed for some four weeks or thereby. The parties having had some months to investigate and consider their respective positions and to research matters, the extra cost of putting these matters in an appropriate form before an adjudicator were likely to be not very great.

S L Timber Systems Limited -v- Carillion Construction Limited (June 2001)

Error of fact or law on the part of the adjudicator will not afford ground for refusal of enforcement, unless the error was of such a nature that the adjudicator's decision was, as a result, one which he had no jurisdiction to make.
The adjudicator erred in:
· Lumping together the defenders' failure to give a section 110(2) notice with their failure to give a timeous section 111 notice. Failure to give a section 110(2) notice does not, in any way or to any extent, preclude dispute about the sum claimed.
· Holding that any and every attempt to dispute a claim made under a construction contract is to be regarded for the purposes of section 111 as an attempt to "withhold" payment, and therefore as requiring a notice of intention to withhold payment. It remains incumbent on the claimant to demonstrate, if disputed, that the sum claimed is contractually due. If he can, he is protected, by the absence of a section 111 notice, from any attempt to withhold all or part of the sum due on the basis that some separate ground exists.
However, the adjudicator's error did not take him out of the proper scope of his jurisdiction. He made an intra vires error rather than one which rendered his decision ultra vires. His decision was wrong, but not in such a way as to be invalid and reducible.
The Act does not qualify the expressed intention that an adjudicator's provisional award should be enforced pending final resolution of the dispute, to the effect of making an exception in the case where the claimant, although not in liquidation, can be shown to be insolvent.

William Naylor t/a Powerfloated Concrete Floors -v- Greenacres Curling Limited (June 2001)

The Petitioners were seeking interdict and suspension of a second adjudication started by the Respondents on essentially the same dispute as the second adjudicator had not resigned as required by paragraph 9.2 of the Scheme.
Having earlier granted such an interdict and suspension during a hearing at which the Respondents were not represented, Lord Bonomy recalled the interim interdict, holding that the Court of Session was being asked to exercise its supervisory jurisdiction and that since 1985 it had been mandatory to present applications to the supervisory jurisdiction of the Court by petition for judicial review rather than by ordinary petition (Rule 58.3.-(1) of the Rules of the Court of Session applied in two respects).
Comment: In so doing, he was neither ruling that the second adjudication should proceed nor be stopped; he was ruling that an ordinary petition was the wrong approach that required to be taken. This is a technical and procedural matter in relation to the Rules of the Court of Session which would require a petition for Judicial Review to have it resolved.

Ballast plc -v- The Burrell Company (Construction Management) Limited (June 2001)

Lord Reed was asked to declare that a decision by an adjudicator was to be set aside as a nullity.
The basis for the petition was that the adjudicator had answered the issues put to him as "Not valid" on the basis, it appeared to Lord Reed, that a departure from the JCT conditions necessarily entailed that no adjudication could be carried out. This was rejected and accordingly the adjudicator had failed to exercise his jurisdiction to determine the dispute put to him for a decision.
The respondent had argued that as a Decision had been issued by the adjudicator - even if incorrectly - the matter was decided until finally resolved by litigation, arbitration or agreement and hence no subsequent adjudication proceedings on the same dispute could be instigated by the petitioners.

C & B Scene Concept Design Ltd -v-Isobars Ltd
(June 2001)

It was held that an error in law made by the adjudicator constituted an excess of jurisdiction with the result that the court refused enforcement.
Recorder Moxon Browne QC agreed with Isobars that if no election was made between payment alternatives A and B of Appendix 2 of the JCT Design & Build Contract payment provisions, the entirety of clause 30 of the contract must fall away and the Scheme applied. The adjudicator had erred in law in basing his decision upon the provisions of clause 30.3.5.
The adjudicator had answered the 'wrong question' and thus he had acted in excess of his jurisdiction. Enforcement of the decision was refused and Isobars was given leave to defend the action and pursue its counterclaim.

Barr Limited -v- Law Mining Limited (June 2001)

Lord Macfadyen expressed some reservations about the comments made by HHJ Thornton QC in Sherwood & Casson -v- McKenzie that the decision of an Adjudicator whose validity is challenged as to its factual legal conclusion or as to procedural error remains a decision that is both enforceable and should be enforced.
Lord Macfadyen made a distinction between a decision that is unsound but valid and a decision that is invalid because it was not one that the Adjudicator had power to make. In addition, he did not rule out the possibility that that a procedural error may produce a result that the Adjudicator makes a decision that is beyond his jurisdiction. This is in slight contrast to the treatment of the "procedural error" by Mr Justice Dyson in Macob.
The defenders contended that since the dispute between the parties included three separate elements, issues as to the amounts due in two separate interim certificates and a claim for an extension of time, there were in fact three disputes. However, Lord Macfadyen said that at first instance the Adjudicator must decide for himself whether what is at issue is a dispute or several disputes. It is easy to sub-divide and analyse what is in substance one dispute into its component parts and label each part a separate dispute. This is not the correct approach. A realistic view must be taken. Here, the dispute was what sum is due and owing to the pursuer.
Defences were also raised on the basis that the adjudicator did not have jurisdiction to consider applications for payment which had not been certified (i.e. therefore no sums were due). This was rejected.
Finally, since the contracts were rescinded by the Defender, it was argued that since the adjudication notices did not distinguish between sums allegedly due before and after that rescission, where the adjudicator decided that the contract had indeed been rescinded he could not continue. In one of the adjudications Lord Macfadyen agreed that the adjudicator had not considered this point. Therefore any sum which flowed from this part of the decision could not be enforced.
It was submitted that it was possible to separate the "good parts" from the "bad parts" of the decision. This was not disputed by the parties and nothing further was said about the question as a legal issue. It is of course in contrast to the KNS and Farebrother cases.

Mitsui Babcock Energy Services Limited (June 2001)

Mitsui sought Judicial Review of a decision by an Adjudicator that she did not have jurisdiction to consider a dispute which concerned the construction of two boiler plants on a site leased to a company within the overall site at BP Grangemouth whose primary activity was the processing of chemicals and oil on the petrochemical complex.
The Adjudicator had viewed the situation as being a dispute which fell within the exclusion contained in section 105(2)(c) of the 1996 Act.
Mitsui's position was that as the combined heat and power complex was within a site on land leased to a separate company, the primary activity of the site was the generation and supply of steam which was therefore not within the section 105(2)(c) exclusion.
Lord Hardie decided that on the facts of the case the installation of the boiler plant was to further the primary activity of the processing of chemicals and oil on the petrochemical complex and hence fell within the exclusion, and dismissed the petition accordingly.

Fence Gate Ltd -v- James R Knowles Ltd (May 2001)

An adjudicator had awarded James R Knowles payment for invoices for providing evidence as witness of fact and assisting in an arbitration. It was held that these were not matters falling within the definition of a construction contract within sections 104(2) of the HGCRA.
The Judge thought it clear that while giving factual evidence or assisting at an arbitration was not in itself a construction operation as defined by section 105, it did not necessarily follow that these activities were not carried out in relation to construction operations.
However the giving of factual evidence by an architect is not the "doing" of architectural designing or surveying work itself. Similarly, providing litigation support at an arbitration is not the same as providing advice on the building or engineering. They are different and distinct activities.
Disputes in relation to payment of fees properly payable for services rendered as a witness of fact or assisting at an arbitration or litigation are not disputes in relation to construction operations, even if that dispute concerns construction operations. They are disputes in relation to litigation support work and arise under a contract provision of litigation support services.

Faithful & Gould Limited -v- Arcal Limited and Ors. (May 2001)

Application by an adjudicator against Arcal Limited and Messrs Martin and Dawson of Deloitte and Touche (the Receivers) for payment of his fees.
It was held that:
· An adjudicator must be a natural person acting in his personal capacity. However, he is not required to sue for his fees in that capacity.
· On the facts of the case, the Defendants were bound to pay the adjudicator's fees by an agreement between their joint agent (Mr Klein) and the adjudicator, alternatively by their conduct they are estopped from denying the authority of Mr Klein.
· By reason of the defendants' conduct in the proceedings, costs were awarded against them on an indemnity basis.

Re A Company (number 1299 of 2001) (May 2001)

In the absence of a Section 111 Withholding Notice, a contractor has an undisputed debt for the amount demanded in an application for payment. This debt may form the basis of a statutory demand, which if unpaid within 21 days may justify a petition to wind up the debtor.
The main contractor's surveyor had certified the sums were due and the right to withhold had been forfeited as a result of the main contractor's breach of Section 111. The Court refused to restrain the winding up petition. It also refused to exercise its discretion to dismiss the petition because the main contractor had failed to take any steps to pursue its cross claim for set off and/or abatement (which could have extinguished the debt claimed) in adjudication or other proceedings.

RJT Consulting Engineers Limited -v- DM Engineering Limited (May 2001)

HHJ MacKay considered an application for a declaration that the agreement between the parties was not an agreement in writing as provided for by section 107 of the HGCRA. HHJ MacKay said that section 107 was an inclusive not an exclusive piece of legislation. The purpose of t