the documentation required and this was sent to the Adjudicator and to ACL’s solicitors, although received late by the latter. ACL complained that it was disadvantaged and would not be able to respond meaningfully in the timescales to the additional BBP documentation.
Lord Tyre opined that the time afforded to ACL to respond was adequate. ACL’s refusal to participate in the visit was unreasonable and was a major factor in the requirement for the additional BBP documentation. Further, the Adjudicator had suggested a two day extension of time and ACL failed to respond. As such Lord Tyre found that ACL could not now complain of unfairness. In other words, you can’t have your cake and eat it!
Severability
BBP’s secondary position depended on severability. If a breach of natural justice was determined, the vitiated part of the decision could be severed and an award could be made to BBP based on the remaining part of the decision. Although Lord Tyre did not need to go into detail on this point, he provided a view: precedent is set against severance and although there were a number of different issues to be determined the matter was a single dispute. Lord Tyre found that deducting an amount from the Adjudicator’s award would have effectively re-written his decision and this was not permissible.
Comment
Lord Tyre’s decision is another example of the Court of Session paying deference to adjudicators’ decisions and the adjudicative process. Natural justice is important in adjudications, however it is to be balanced with the need for expeditious resolution of disputes. An adjudicator is required to act fairly in all the circumstances, however parties must also be sure they have acted reasonably during the adjudicative process should they intend to rely on a breach of natural justice to challenge an adjudicator’s decision.
*This article was co-written by Shona McCusker.
About the Author
David Wilson joined MacRoberts in 2000 and specialises in contentious construction law. He is accredited by the Law Society of Scotland in this regard.
He advises in all types of construction projects/disputes, and has extensive experience of pursuing and defending parties in commercial disputes in the Court of Session, Arbitration and Adjudication as well as providing legal advice to Adjudicators.
He also lectures to the industry and contributes to the MacRoberts Construction Bulletins and e-updates