Hot off the press is a decision from the Outer House of the Court of Session concerning an application, by a contractor, to judicially review the decision of an adjudicator (WH Malcolm Limited for Judicial Review of the decision of an adjudicator, 10 November 2010). The background is an all too familiar story, a subcontract was entered into for various works at a school. Parties fell out and adjudication was commenced, by the Sub Contractor, for payment. The adjudicator determined that payment was due and despite not being asked to give decisions she did so including finding that SMM7, a standard method of measurement, did not apply to the parties’ contract.

A second adjudication was raised seeking further payment. The Main Contractor submitted that the correct method of measurement was SMM7. The Sub Contractor disagreed and referred the adjudicator in the second adjudication to the decision of the adjudicator in the first. As the first adjudication decision was temporarily binding the Sub Contractor submitted that the dispute over SMM7 had already been determined despite the fact that it had not been referred to the first adjudicator. The second adjudicator, having taken Counsel’s opinion, took the view that he was not bound by the first adjudicator’s reasons as not forming part of her decision or in fact being referred to her in the first instance.

The Sub Contractor then sought interdict and interdict ad interim against the adjudicator from making further determinations as well as judicial review of his “decision” not to take account of the first adjudicator’s reasons. The questions for the court were first what the dispute referred in the first adjudication was and second what the decision in that adjudication was. In order to ascertain the dispute referred the court looked to the Notice of Intention to Refer and the Referral Notice. The Response document does not expand the matters disputed but simply answers the propositions put forward by the Referring Party. Of course, if a Referral is not the same or substantially the same as a dispute referred to a previous adjudicator, a subsequent adjudicator is not prevented from determining it.

The party seeking to review the second adjudicator’s right to determine the correct method or measurement argued that although it was not in the Referral or Notice in the first adjudication it could not have been as they weren’t aware of the Respondent’s position until the Response was lodged. Once the Response was lodged the parties impliedly agreed to extend the scope of the first adjudication to cover the method of measurement. The Interested Party’s submission was the measurement dispute was not referred in the first adjudication nor was it in the decision, being mentioned only in the reasons of the adjudicator.

Ultimately the case failed due to the TeCSA rules barring a party from having recourse to court unless and until the adjudicator has made or refuses to make a decision. Even if this had not been the case, the court opined that there was force in the interested party’s submissions that the measurement issue had not been referred to the first adjudicator, nor was it decided by her. This case serves to reinforce the position that the Notice of Intention to Refer a Dispute to Adjudication is a key document and must be drafted carefully giving, as it does, the adjudicator jurisdiction to determine the matters referred to him/her.