Watson Building Services Limited (Judicial review)

The contractor's petition for the judicial review and reduction of the adjudicator's decision on the ground that the adjudication was without lawful warrant because the adjudicator's appointment was by an unauthorised nominating body should be refused
The sub-contractor sought to refer a dispute to adjudication. The sub-contract's terms did not satisfy the requirements of the Construction Act 1996 with the result that the Scheme for Construction Contracts applied. The sub-contractor applied to a nominating body for the appointment of an adjudicator under paragraph 2(1)(c) and (3) of the Scheme. The contractor objected to the purported referral on the ground that provisions had been incorporated into the sub-contract which provided for the appointment of an adjudicator by certain nominating bodies but not the nominating body under the Scheme. The first adjudicator appointed decided he did not have jurisdiction with the result that a second adjudicator was appointed by the nominating body specified under the Scheme. The second adjudicator decided that he did have jurisdiction and made a decision in favour of the sub-contractor. The contractor failed to make any payment. The sub-contractor was at the point of seeking summary judgment when the contractor issued a petition for judicial review and the reduction of the decision under Scottish courts procedure. Lady Paton held that the contractor's petition should be refused. The adjudicator had the power to determine the dispute as to whether the relevant provisions of the contract had been incorporated by reference, which involved his determining the (further) dispute as to the validity of his appointment and in effect his jurisdiction (which decision was binding on the parties until any ultimate resolution by court or arbitration proceedings). One of the disputes which the parties to a construction contract could have was as to the adjudicator's appointment, jurisdiction or lawful authority. When determining this type of dispute the adjudicator should consider the contract terms, including any term dealing with dispute resolution procedures, form a view about the meaning of terms and make decisions and rulings accordingly. In any event the contractor had confirmed that even if the adjudicator's jurisdictional determination was wrong, he should nevertheless have proceeded to determine the merits of the sub-contractor's claim. Advice Note An adjudicator has jurisdiction to determine the contract's terms and if a party agrees to the adjudicator doing so, he will not be able to complain to the courts subsequently if he does not agree with the determination.