Bouygues E&S Contracting v Vital Energi Utilities Ltd (Scot, OH, CS - 22.7.2014)

The parties did not have to be given an opportunity to comment on the adjudicators intention to rely on his own experience in taking into account a sample of the contractors invoices after having been given details as to his experience



Scotland, Outer House, Court of Session

Lord Malcolm
22nd July 2014
An adjudication took place in respect of the contractor’s claims for monies allegedly due to it under the sub-contract representing the cost of completion of the sub-contract works, in respect of which the adjudicator awarded a specified sum. The adjudicator was a layman in engineering terms and asked for an assessment from a consulting engineer (as his assessor) as to whether the contractor’s invoices on their face related to an issue for determination, namely matters which required to be carried out for the completion or rectification of the sub-contract works. The assessor’s response based on a sample of 10% of the invoices was in the affirmative. The adjudicator accepted this advice. The adjudicator stated in this connection that (i) In his experience of similar disputes in court, the court may resolve the issues by consideration of a sample of invoices/claims etc and (ii) He considered that such an approach was all the more acceptable in the context of adjudication.
The sub-contractor contended that the parties should have had an opportunity to comment on the adjudicator’s intention to rely on his own experience in taking into account the sample after having been given details as to his experience. Lord Malcolm rejected that contention for the reasons below.
This was not a case of an adjudicator adding to the evidence. Had there been an unauthorised inspection or use of any undisclosed personal knowledge of the adjudicator as to the details of the project, that would have been different. However, it was unobjectionable for the adjudicator to use and refer to his own experiences as an advocate to the effect that judges accept sampling exercises of the kind carried out by the assessor. It is common for a decision-maker to draw on his own experience without giving advance notice of this to the parties for their comment. The problem in the decision of Lord Glennie relied on by the sub-contractor was the introduction of new matters, which decision could therefore be distinguished.