An adjudicator made a mistake in carrying over a figure in the calculations in his decision. One of the parties pointed this out and the adjudicator promptly issued an amended decision, correcting the error and also including, in the calculations, two items previously omitted. The slip rule introduced in the amended Scheme for Construction Contracts (in England and Wales and Scotland), allows correction of “... a clerical or typographical error arising by accident or omission...” but the Scottish court ruled that it did not apply. Could a similar slip rule, however, be implied and, if it could, would it permit the inclusion of the items that had been left out?
On the basis that there might be scope for implication of a term similar to the amended Scheme slip rule, the court decided that it would not apply to the inclusion of the items originally omitted. It noted that the rule’s scope is relatively narrow and it is not directed to pure omissions. A “clerical or typographical” error indicates an error in expression or calculation of something in the decision, not an error going to the reason or intention forming the basis of that decision and “accident or omission” points to correction of slips or mistakes in expression, rather than changes to the reasoned or intended basis of the decision. If the slip rule allowed corrections of pure omissions or giving effect to second, rather than first, thoughts or intentions, it could seriously undermine the interim finality of Scheme adjudications.
The court also found that the adjudicator had not addressed all but one of the substantive defences and had therefore failed to exhaust his jurisdiction in respect of these. This failure was material as each defence afforded a complete defence to the relevant claim, which made the decision or, if severable, the relevant parts of it, unenforceable.
NKT Cables A/S v SP Power Systems Limited at: