Where a case is decided on a point which the parties have not been given an opportunity to address, the subsequent decision may or may not be mistaken but will not necessarily be made in excess of the adjudicator's jurisdiction.
Lord Caplan, Outer House, Court of Session (Scotland)
21 December 2000
The petition for judicial review was a review of a decision by an adjudicator made under the HGCRA 1996. K appointed S as sub-contractors. S made a reference to adjudication for alleged non-payment. The Adjudicator found that S was entitled to £40k exclusive of VAT. K challenged the decision on the ground that the decision was beyond the limits of the reference to the adjudicator.
The Adjudicator decided that the Sub-Contract terms and conditions did not make adequate provision for time of payment as required by s110 HGCRA and consequently decided that the Scheme for Construction Contracts (Scotland) Regulations 1998 applied.
K argued that the compliance of the Sub-Contract with the HGCRA was not an issue that had been referred to adjudication. By finding that the Sub-Contract did not make clear provisions for determining when an interim payment was due and relying upon the payment provisions of Part 11 of the Scheme, the adjudicator strayed beyond the bounds of the referral to adjudication. Reference was made to communications from S as conclusive evidence that the applicability of the payment provisions of the Scheme formed no part of the dispute between the parties. K argued that if the applicability of the Sub-Contract had been challenged then they would have hotly contested the matter. They were, however, given no opportunity to do so. S argued that the Notices, Response and correspondence showed that their clear objective was to obtain payment for work they had done and detailed in their application for payment.
Lord Caplan said that the adjudicator was required to give consideration to the relevant provisions of the Sub-Contract. In considering those provisions the adjudicator had rightly or wrongly concluded that the Sub-Contract did not provide an adequate mechanism for deciding when monthly installment payments became due and consequently applied the Scheme, a point which the parties did not have the opportunity to address.
Lord Caplan said that a Court is left feeling uncomfortable when a case is decided on a point which the parties have had no opportunity to address. Having seen how the matter developed, the adjudicator should have made arrangements to give the parties an opportunity to make submissions on the view that there was no adequate mechanism in the Sub-Contract for determining when a monthly installment became due. However, where the procedures followed were unsatisfactory, or the decision regarding the effect of the payment provisions in the Sub-Contract was not adequate, then these problems would represent mistakes made by the adjudicator in the treatment of the referral rather than an excess of jurisdiction. Therefore the challenge on the adjudicator's jurisdiction was rejected.
Where a case is decided on a point which the parties have not been given an opportunity to address, the subsequent decision may or may not be mistaken but will not necessarily be made in excess of the adjudicator's jurisdiction.
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