[2017] ScotCS CSOH 55

This was a Scottish adjudication enforcement case. ACL said that the adjudicator had failed to give ACL a proper opportunity to respond to information supplied by BBP at the very end of the process. Further, the adjudicator had failed to address the ACL contra charge in any proper fashion. BPP said that ACL had sought to contrive a situation in which it could complain that it had been unfairly treated. ACL delayed in advising the adjudicator that certain material had not been received. ACL did not agree to the adjudicator’s request for a two-day extension of time.

Lord Tyre emphasised that it is a feature of adjudication that the restricted period available to produce a decision may result in very short times being given to parties to respond to requests for information or to documents produced or submissions made by the other side. This was a complex adjudication in which the adjudicator was required to consider and give his decision on a number of issues. Three extensions of time were agreed. It was obvious that some matters would inevitably have to be left to be dealt with close to the deadline for the issuing of the decision. Here, the adjudicator had two matters still to address with a week to go. Right at the end of the time period, the adjudicator asked to see the sub-contractors’ final accounts and proof of payment, and noted that he still had not seen proof of payment to the main contractor. The Judge commented that:

“ACL and their advisers chose neither to engage in that process nor to respond to the adjudicator’s suggestion of a further extension of time, and cannot now complain of unfairness.”

There was no obligation on the adjudicator to request additional documents. It was the responsibility of ACL, when submitting its claim, to include the necessary proof, and it might be a breach of natural justice for an adjudicator to refuse to allow the contra-charge on the grounds that it was inadequately vouched without giving an opportunity to provide further proof. However, the adjudicator did not do this. He proposed a further extension of time. That request was not agreed. ACL produced a transcript from the contractor’s account which, they considered, provided the substantiation required. The adjudicator disagreed. Finally the Judge noted:

“I do not accept that the adjudicator is open to criticism for leaving this matter until the last minute and then, as counsel for the defender put it, holding the parties hostage to rolling extensions of time. Something had to be done last and, given the size of the adjudicator’s task, it was highly likely that if the matter left to last gave rise to questions, they would have to be addressed within a very short time. In the event ACL was able to respond, and its complaint, in substance, was that the adjudicator ought to have been satisfied by the response. His decision to proceed to deal with, and to reject, the claim on grounds inter alia of inadequate substantiation was not therefore, in my view, a breach of the rules of natural justice.”