Adjudication
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KEYWORDS: |
Housing Grants Construction and Regeneration Act 1996, Section 104, Scots Law, Administration of Contract, jurisdiction, professional negligence, provisional nature and no loss argument, judicial review, ultra vires, irregularity, severance of decision, Lady Paton |
The opinion in Gillies Ramsay Diamond v PJW Enterprises Limited by Lady Paton on 27th June 2002 decides a number of matters in Scots Law which are of general interest and application, in a contract with a professional firm providing services for a separate building contract. First Lady Paton decided whether a contract with a contract administrator, requiring his decisions on claims and disputes in the building contract, was a construction contract under the Act. Secondly a decision was made on whether professional negligence claims could be considered by adjudicators. Thirdly the uniquely scottish problem of whether adjudicators, like arbiters under Scots Law, had no power to award damages without express terms was decided. Fourthly, the interesting question of whether there had been a loss at all was decided, where the measure of loss was an adjudicators award under the building contract, being provisional in nature. Lastly Lady Paton set out the law in relation to judicial review in Scotland, the power of the Court to examine the correctness of the adjudicator's decision and the approach to examining whether there had been any irregularity disclosed by the adjudicator's reasons.
PJW entered into a building contract as employer with R & R Construction (Scotland) Limited as contractor to carry out an extension to and refurbishment of premises at 40 Stanley Street, Kinning Park, Glasgow. The contract was an SBCC Scottish Minor Works Contract (April 1998 revision). Clause 10A provided for adjudication and gave the adjudicator the power to award damages and interest thereon. There were five adjudications, PJW was ordered to make certain payments and did so.
PJW instructed the firm of surveyors Diamond to act as contract administrator during the works. The letter of appointment did not contain an adjudication clause. In the course of the works, disputes arose between PJW and Diamond, resulting in the termination of Diamond's appointment on 28 January 2000.
On 13th March 2001 PJW gave notice of adjudication alleging that there was an implied term that Diamond would exercise the degree of skill and care to be expected of an ordinarily competent surveyor and that Diamond:
PJW sought an order from the adjudicator that they were entitled to payment from Diamond of £46,187, or such other sum as the adjudicator thought proper. On 4 May 2001, the adjudicator issued a decision that PJW had suffered loss as a result of breach of an implied term of the contract and that PJW was entitled to damages of £29,119.80 and gave a breakdown of the entitlement in his reasons for the decision. He ordered payment within seven days from the date of his decision with interest. The reasons for the decision were contained in a separate document.
On 24 May 2001, Diamond sought judicial review of the adjudicator's decision. The issues and Diamonds contentions are set out below under the following headings:
4.1 Dispute in Professional Negligence: Diamond contended that claims of professional negligence were not suitable for determination in adjudication.4.2 Relevant Material: Diamond contended that the adjudicator had failed to take into account submissions made on behalf of Diamond, and therefore failed to take into account certain material considerations.
4.3 Corrections of the Decision: Lady Paton examined the limits of the court’s powers when considering the correctness or otherwise of an adjudicator’s decision.
5.1 Extension of Time: Lady Paton examined the adjudicator's reasons for the decision of negligence in granting an extension of time.5.2 Written Instructions: Lady Paton examined the adjudicator's reasons for the decision of negligence in relation to written instructions.
Diamond submitted that the obligatory "adjudication by default" provision contained in section 108(5) of the 1996 Act applied only to construction contracts, as defined by section 104 of the 1996 Act. Diamond's appointment was not a construction contract. In particular, a contract administrator was not "carrying out construction operations" within section 104(1)(a) of the 1996 Act, nor was he "providing labour" within section 104(1)(c). In relation to section 104(1)(b), Diamond submitted that the contract administrator was not "arranging" for others to carry out work: he was taking decisions about parties' rights under the contract, for example, by granting extensions of time, or by issuing instructions. As to Section 104(2)(a) Diamond submitted that contract administration was not "surveying work". A contract administrator had to determine parties' rights. Diamond argued that it was wrong that the contract administrator should have claims made against him for damages for professional negligence being decided by an adjudicator.
Diamond advocated severance from the rest of the contract of (a) the contract administration element of the contract: cf. dicta in Homer Burgess Ltd. v. Chirex (Annan) Ltd., 2000 S.L.T. 277, and (b) the items in respect of which Diamond had performed a quasi-judicial role and had been held to be negligent.
Diamond argued that on a proper construction, section 104(1)(b) did not include someone acting in a quasi-judicial function. The reference to "surveying work" in section 104(2)(a) had to be tested against the background of section 104(1)(b). It was not appropriate to take a broad construction of section 104 so as to include contract administration. The dicta in Fence Gate Ltd. v James Knowles Ltd. were purely obiter.
Lady Paton observed that Diamond’s terms of appointment included ascertaining site dimensions, drawing up plans, obtaining statutory consents, advising about other consultations, drafting schemes, preparing specifications, trade preambles and drawings, preparing a pre-tender budget, seeking tenders, assessing tenders, making a tender report, having a pre-contract meeting, programming the works, monitoring the works, visiting the sites, liaising with parties, administering the works, having responsibility for financial control, preparing evaluations of work done, issuing certificates including a certificate of practical completions, dealing with outstanding works, carrying out final inspection, and deciding on the release of retentions. The services rendered were to be charged according to the Building Surveying Services Building Works Scale Fee 10% in the RICS Scale of Charges for Building Surveying Services.
Lady Parton held that even if the contract administration services were to be severed from the other services undertaken by Diamond, those contract administration services amounted to arranging for the carrying out of construction operations by others, whether under sub-contract or otherwise, in terms of section 104(1)(b) of the 1996 Act. The term “to arrange” was defined in the Oxford English Dictionary as meaning “2. To put ... into proper or requisite order ... 5. To settle (relations between parties, conflicting claims, matters in dispute, differences) ... 6. To come to an agreement or understanding as to mutual relations, claims, matters in dispute; 7. To settle the order, manner, and circumstantial relations of (a thing to be done); to plan beforehand”. Lady Paton considered that it was of the essence of a contract administrator’s function that he “arranged” for the carrying out of the construction operations by means of advising on consultations required, orchestrating tenders, programming, certifying, and controlling finances. Without these measures, the constructions operations would not be carried out - or would not be carried out in a satisfactory way.
Lady Paton held that the contract between the PJW and Diamond, whether viewed as a whole, or viewed solely as the contract administration part (severed), was a construction contract within section 104(1)(b).
Lady Parton held that Diamond, by undertaking to carry out contract administration services, were entering into an agreement “to do ... surveying work ... in relation to construction operations”. Working as a contract administrator was something which surveyors do, as part of their professional life. The work was to be paid for in terms of the Building Surveying Services Building Works Scale Fee 10% in the RICS Scale of Charges for Building Surveying Services. Diamond’s contract administration services also qualified as surveying work in terms of section 104(2), and therefore the contract was a construction contract.
Lady Paton considered that her decision was confirmed by the observations of His Honour Judge Gilliland, Q.C. in Fence Gate Ltd -v- James Knowles Ltd(2001).
Damond submitted that section 108(1) of the 1996 Act referred to "a dispute arising under the contract". Diamond argued that neither the letter of appointment nor the statutory scheme (the Scheme for Construction Contracts (Scotland) Regulations 1998 S.I. 1998 No.687) specifically empowered the adjudicator to make an award of damages. In Scots law, an arbiter had no power to award damages, unless such a power was expressly conferred upon him: Aberdeen Ry. Co. v Blaikie Bros. (1853) 15D. (H.L.) 20; McAlpine v Lanarkshire & Ayrshire Ry. Co. (1889). English law was different: Heyman v Darwins Ltd. [1942] A.C. 356.
Diamond submitted that Scots law was quite clear about the lack of power of an arbiter to award damages, and the Scots statutory scheme for adjudication should be construed against that background. A "payment under the contract" was a very different concept from damages such as were claimed in the present case.
Lady Paton accepted that it was well-settled in Scotland that an arbiter did not have the power to award damages, unless the parties had expressly empowered him to do so, in contrast to arbiters in England cf. dicta in Heyman -v- Darwins Ltd., [1942] A.C. 356.
Parliament had introduced a new adjudication scheme applicable to the whole of the United Kingdom, to provide a relatively prompt provisional resolution of the many disputes and differences which can arise in the course of construction works (see Macob Civil Engineering Ltd v Morrison Construction Ltd., [1999] B.L.R. 93, Karl Construction (Scotland) Ltd, 2001. Lady Paton held that the court should be slow to import into a United Kingdom statutory scheme certain Scottish common law rules relating to the quite separate system of arbitration. This was particularly the case if a common law rule has been the subject of some criticism and would result in different approaches to adjudication north and south of the border.
The wording of both the 1996 Act and the statutory instrument was quite general referring to: “any dispute arising under the contract”. Lady Paton held that such wording alone would entitle an adjudicator to make a finding of damages and to award or set off such damages if a claim for damages formed part of the dispute referred to him. The wording of paragraph 20(2)of the Scheme was not exhaustive , and accordingly even if one took the view that damages could not be regarded as “a payment under the contract” (paragraph 20(2)(b)), paragraph 20(2), properly construed did not mean that an adjudicator cannot award damages. Authorities such as Heyman v Darwins Ltd., [1942] A.C. 356; Photo Production v Securicor, [1980] A.C. 827, Lord Wilbeforce; Lloyds Bank v Bamburger, 1993 S.C. 570; and Compagnie Commercial Andre S.A. v Artibel Shipping Co. Ltd., 1999 S.L.T. 1051, tended to support the argument that the adjudication scheme extended to awards of damages arising as a result of breach of a construction contract. Lady Paton held that he statutory scheme entitled an adjudicator to make findings that damages were due, and to make awards (or to set off) sums in name of damages.
Support was to be found in several sources. Firstly, in England, adjudicators could and did award damages: Bouygues (UK) Ltd. v Dahl Jensen (UK) Ltd., Court of Appeal., [2000] B.L.R. 522. Secondly, the construction industry in Scotland appeared to envisage and accept as appropriate the possibility that an adjudicator might award damages. Thirdly, the conclusion reached avoids the unacceptable situation which might arise were one contracting party to go on adjudication to achieve payment of a sum due to him under the contract (for example, a contract instalment for work done, or professional fee), and the person prima facie liable to pay the sum due was unable properly to advance a defence that he sum claimed should not be paid (or paid in full) as there had been breaches of contract on the part of the claimant entitling the other party to damages, retention or set-off.
Diamond submitted that an award in an adjudication was merely provisional, and was subject to ultimate resolution by a court or an arbiter. Thus in the present case, the over-payment of £14,914.53 which RJW had been obliged (as a result of a previous adjudicator's ruling) to pay to the contractors might well be recoverable in the end of the day. What had been determined by the previous adjudicator was only a provisional loss. Awards in adjudications were provisional, temporary. Matters would be explored in a litigation or arbitration at the end of the day: paragraph 23.2 of the scheme.
Diamond submitted that it was a fundamental principle of the law of damages that damages should be assessed once and for all: Stevenson v Pontifex & Wood (1887) 15R. 125. Bearing in mind that fundamental principle, it could not be said that the employers had suffered a "loss" of £14,914.53, entitling them to damages. Difficulties of principle would arise if an adjudicator purported to award damages. It was a wholly unsatisfactory role reversal if a party whom the adjudicator had ordained to pay damages was forced to attempt to recover these sums in a subsequent litigation.
Lady Paton held that PJW suffered loss on making the over-payments and on incurring the bank overdraft and additional legal fees. Following upon Diamond’s grant of an extension of time, the PJW was unable (until the extension was ruled wrong by the Adjudicator) to recover liquidate damages from the contractors. As a result, PJW incurred bank overdraft costs and additional legal fees. PJW’s resources were therefore depleted, both by having to make over-payments in respect of certain items of work, and by having to incur unexpected overdraft costs and legal fees. In other words, PJW suffered losses.
Diamond argued that it was a fundamental principle that damages should be assessed once and for all (Stevenson v Pontifex & Wood (1887) 15R. 125), and therefore that the adjudicator’s award, being merely provisional, could not properly be regarded as a loss.
Lady Paton observed that Parliament had the power to make exceptions and qualifications to any general principle, including the fundamental rule in damages referred to by Diamond. She held that the adjudication scheme set up by the Housing Grants, Construction and Regeneration Act 1996 was an example of a statutory exception to or qualification of the general principle.
Lady Paton held that in any event, even if the common law principle embodied in Stevenson was applied, that principle dictated that the decision-maker must assess any loss on the basis of information currently available, making reasonable predictions and allowances for future developments. The decision-maker should then award a certain sum in damages. Subsequent events may prove that sum inappropriate in some way but that was irrelevant when applying the principle in Stevenson. Even applying the principle embodied in Stevenson, it was at least arguable that it would be impossible at the stage of the adjudicator’s decision to predict whether or not the employers might succeed in making good some of their losses in future. Accordingly the adjudicator was entitled to take the view that the PJW had suffered losses, and to assess the losses as they stood at the date of his decision.
Lady Paton examined the Adjudicator’s decision. She set out a thorough explanation of the law in Scotland on judicial review of adjudicator’s decision. She also set out clearly the logic for deciding whether an adjudicator’s award was enforceable based on the substance of the decision.
Lady Paton observed that Parliament created the adjudication scheme in order to provide “a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending the final determination of disputes by arbitration, litigation or agreement ...” Macob Civil Engineering Ltd v Morrison Construction Ltd., [1999] B.L.R. 93, Karl Construction (Scotland) Ltd v Sweeney Civil Engineering (Scotland) Ltd., 2001 S.C.L.R. 95. Further guidance was to be found in Sherwood & Casson Ltd. v Mackenzie (2000) 2 T.C.L.R 418.
Lady Paton observed that in England, it is simply not open to parties to seek judicial review of adjudication proceedings. In Scotland, however, applications for judicial review of adjudications had been entertained (Homer Burgess Ltd v Chirex (Annan) Ltd., 2000 S.L.T 277). Such cases are rare as emphasised by Lord Reed in Ballast plc v The Burrell Company (Construction Management) Ltd., 2001 S.L.T 1039.
Lady Paton suggested that there was much to be said for a policy that decisions of adjudicators acting under the 1996 Act should not be challengeable by way of judicial review. If adjudicators’ decisions were open to challenge in court by way of judicial review, the whole purpose of the adjudication scheme could be undermined. The fact that disputes and grievances could be explored, and if necessary errors put right, in a subsequent litigation or arbitration in terms of section 108(3) of the 1996 Act and paragraph 23(2) of the Scheme placed an adjudicator acting under the 1996 Act in a rather special category, and certainly in a different category from many other decision-makers: Watson Building Services Ltd. v Harrison, 2001 S.L.T 846.
Lady Paton held that assuming that, in Scotland, judicial review of adjudicators’ decisions is to be permitted, and applying the guidance provided in Homer Burgess Ltd. v Chirex (Annan) Ltd., 2000 S.L.T 277, and SL Timber Systems Limited v Carrillion Construction Limited, [2001] B.L.R. 516 and in Ballast plc v The Burrell Company (Construction Management)Ltd., S.L.T. 1039, the present case did not fall into a reviewable category.
Lady Paton set out three reasons for deciding that the adjudicator’s decision was not ultra vires, before then examining whether there was any irregularity in the decision to render the award reducible.
Diamond submitted that the adjudication scheme, with its emphasis on speedy resolution of disputes and its requirement that the adjudicator issue a decision within 28 days of the referral notice (paragraph 19 of the scheme) was not a suitable procedure within which to weigh up questions of professional negligence, potentially involving complex issues of professional behaviour, causation, and remoteness.
Lady Paton held that there was nothing in the 1996 Act, or the Scheme or in precedent or principle, to suggest that an adjudicator seeking to resolve a dispute arising under a construction contract was not entitled to reach conclusions about the manner in which a professional person has carried out his or her duties in the course of the construction contract - and that included conclusions as to whether there might have been any professional negligence. In a construction contract providing for the services of a professional, such as an architect, it was usually an implied term that the professional would act with the care and skill to be expected of an ordinarily competent professional in that field acting with reasonable care and skill. A failure to achieve that standard might in certain circumstances, amount to professional negligence, always providing that the test in Hunter v Hanley 1955 S.C. 200, was satisfied. Such professional negligence might in turn constitute breach of contract. Accordingly in the present case, a question such as the question referred to the Adjudicator prima facie invited the adjudicator to consider inter alia any alleged failure on the part of Diamond to act with the care and skill to be expected of an ordinarily competent surveyor/contract administrator acting with reasonable care and skill.
Some support for this conclusion was found in Fence Gate Limited v James R. Knowles Limited (TCC 31 May 2001).
A proper construction of the statutory language setting up the “exceptional and summary” adjudication procedure Bouygues (UK) Ltd permitted a professional person acting as an adjudicator to rule within 28 days on the important and often difficult and delicate question as to whether a fellow-professional has failed in his or her duty to such an extent that there has been professional negligence - although importantly, a “provisional interim” result (Macob Civil Engineering Ltd v Morrison Construction Ltd., [1999] B.L.R. 93).
Lady Paton held that if parliament wished to exempt professional persons fro the adjudication scheme, further legislation might be necessary.
Diamond made reference to a number of authorities to demonstrate that it was recognised in surveying practice that some surveyors might accept a notice requesting an extension of time even after the date of practical completion. Diamond argued that against that background, and under reference to Hunter v Hanley, 1955 S.C. 200; Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634; Royal Brompton Hospital NHS Trust v Hammond and others, 2001 Vol.76 Con.L.R. 148; Watt v Lord Advocate 1979 S.C. 120; Homer Burgess Limited v Chirex (Annan) Limited [2002] B.L.R. 124; Ballast plc v The Burrell Company (Construction Management) Ltd., 2001 S.L.T. 1039; and Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147 the adjudicator had failed in several respects and that Diamond were entitled to have the adjudicator's decision reduced:
Diamond submitted that the adjudicator had failed to exhaust his remit by deciding all necessary questions: cf. Ballast plc v The Burrell Company (Construction Management) Ltd., 2001 S.L.T. 1039; Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C.; FD Properties Ltd. v The Lord Advocate, 1993.
Diamond submitted that the adjudicator also appeared to have failed to take into account certain material considerations, namely that written instructions had been issued, sometimes in the form of site minutes, and sometimes in the form of documents entitled Contract Instruction. The adjudicator had made no reference to these written documents, even if only to say that he did not consider them to comprise written instructions, and why he had reached that conclusion. Prima facie, the adjudicator appeared to have failed to take these material considerations into account when he decided that Diamond had failed to issue written instructions. Diamond submitted that an employer's instruction issued in the presence of the contract administrator and recorded in the site minutes was sufficient.
Diamond submitted that the adjudication scheme expressly required the adjudicator to take into account parties' submissions and the law, and then to give intelligible reasons. Parliament had not intended justice to be sacrificed to speed. Where the adjudicator failed in his duties, the court could review his decision. Ballast plc v The Burrell Company (Construction Management) Ltd., 2001 S.L.T. 1039 made it clear that adjudications in Scotland could be judicially reviewed.. Diamond accepted that a jurisprudence relating to judicial review of adjudications might develop north of the border in a way very different from developments south of the border, but pointed out that since West v Secretary of State for Scotland, 1992 S.C. 385, at page 413, the public element (still a prerequisite in English judicial review) was no longer a prerequisite in Scotland.
Diamond submitted that the adjudicator had clearly not applied the full rigour of the Hunter v Hanley test for professional negligence. Although prima facie the adjudicator had used correct professional negligence terminology, it was far from clear that he had properly understood and applied the test for professional negligence. Accordingly it was far from clear that he had acted within his jurisdiction. In particular, the case of London Borough of Merton v Stanley Hugh Leach Ltd. demonstrated that it was possible for an ordinarily competent surveyor exercising reasonable care and skill to grant a late extension of time.
Lady Paton held that the adjudicator appeared to have taken into account all the material consideration placed before him, including submissions relating to the test for professional negligence. Nevertheless he may have fallen into error in his analysis of the material considerations, and in particular in his application of the law relating to professional negligence.
Lady Paton held that the only question whether the adjudicator has acted ultra vires, resulting in a decision which is a nullity in the sense outlined in Ballast plc v The Burrell Company (Construction Management) Ltd., 2001 S.L.T 1039; cf. principles (ii) and (iv) in Sherwood & Casson Ltd. v Mackenzie (2000) 2 T.C.L.R. 418.
Lady Paton held that the limits of the court’s powers when considering the correctness or otherwise of an adjudicator’s decision were further emphasised in SL Timber Systems v Carillion Construction Limited, [2001] B.L.R. 516.
A similar example of an ultra vires error, was to be found in Bouyges (UK) Limited v Dahl Jensen (UK) Limited [2000] B.L.R. 522, where all the parties agreed that the adjudicator’s calculations were wrong, but the Court of Appeal held that his decision must nevertheless stand until explored in a subsequent litigation or arbitration in terms of Section 108(3) of the 1996 Act.
Lady Paton observed that in the present case, the question put to the adjudicator was whether PJW had “suffered losses by virtue of, [Diamond’s] breaches of the terms of the parties’ contract”. The nature of the redress sought was payment by Diamond to PJW of a sum of money, representing the losses suffered, together with interest and expenses. The adjudicator duly answered the question referred to him, deciding that PJW had suffered losses amounting to £29,1119.80 by virtue of Diamond’s breaches of the terms of the parties’ contract and making rulings on interest and expenses Lady Paton held that Prima facie, his decision answered that question referred to him. Prima facie he had fulfilled his remit. His decision might be right, or partly right, or wrong, but if his decision was indeed intra vires(even if wrong), it was not open to this court to review the decision.
Having decided that the adjudicator’s decision was prima facie intra vires, Lady Paton then examined whether the adjudicator’s reasoning in case that reasoning discloses something (for example, a breach of natural justice) which despite outward appearances of regularity renders the decision ultra vires and reducible: cf. Homer Burgess Limited v Chirex (Annan) Limited, [2000] B.L.R. 124; SL Timber Systems Limited v Carillion Construction Limited, [2001] B.L.R. 516; Ballast plc v The Burrell Company (Construction Management) Ltd., 2001 S.L.T 1039.
Lady Paton observed that it was one of Diamond’s functions as contract administrator to decide whether or not to grant an extension of time. Diamond chose to grant an extension of time of the date of practical completion. A decision to grant or to refuse an extension of time has major consequences for the parties involved, and such decisions were bound to be criticised by one party or another as being wrong. Such criticism does not necessarily make the decision wrong in fact or in law, nor did it automatically make the decision a breach of the contract administrator’s contract. Nevertheless one way in which such a decision could conceivably be categorised as a breach of the contract administrator’s contract entitling the other contracting party (PJW) to damages might be if the decision amounted to professional negligence.
Lady Paton held that for Diamond to establish professional negligence, it was necessary to show that (i) there was a recognised and established practice that a surveyor/contract administrator should never in any circumstances grant an extension of time once the date of practical completion had passed; (ii) Diamond had failed to follow that practice by choosing to grant an extension after the date of practical completion; and (iii) no ordinarily competent surveyor/contract administrator, acting with reasonable care and skill, would in the circumstances have granted the extension of time: cf. Hunter v Hanley, 1955 S.C. 200.
The test for professional negligence is a particularly demanding one, notoriously difficult to satisfy. Lady Paton held that the adjudicator’s reasons were inadequate to justify his apparent finding of professional negligence. Standing Diamond’s counsel’s references to Chappell & Powell Smith and London Borough of Merton v Stanley Hugh Leach Ltd. (1985) 32 B.L.R. 51 (which arguably suggest that in the surveying/building world, an extension of time might in some circumstances be granted even after the date of practical completion) Lady Paton held that some clearer explanation from the adjudicator was required to enable the informed reader or a court to understand how he reached the conclusion that the component part of the Hunter v Hanley test were satisfied.
Lady Paton held that in order to be satisfied that Diamond were professionally negligent on certain occasions because they had not issued written instructions, it would have to be established (a) that no written instructions were given in certain circumstances; (b) that it was the practice of surveyors/contract administrators in those circumstances to issue written instructions; and (c) that no ordinarily competent surveyor exercising reasonable care and skill would, in the particular circumstances, have done what Diamond did (for example, relied upon entries in the site minutes recording employers’ requests to the contractors made in the contract administrator’s presence): cf. Hunter v Hanley, cit. sup.
Lady Paton held that against that background, the adjudicator’s reasoning in relation to this part of his decision does not disclose a clear basis for his finding of professional negligence.
Lady Paton was not satisfied by the reasons given for those parts of the adjudicator’s decision relating to professional negligence in the context of the grant of extension of time and the lack of written instructions. It might be that some parts of the adjudicator’s decision were not correct. Lady Paton held that the court’s powers of review in adjudications were limited and that all that could be said was that any error which the adjudicator may have made was an intra vires error, not an error rendering his decision (or part of it) ultra vires, or one which he had no jurisdiction to make. His decision may be wrong, or wrong in part, but any error into which the adjudicator may have fallen was not of such a nature as to make his decision, or part of it, invalid and reducible. The effect of the “exceptional and summary procedure provided by the 1996 Act” (Bouygues (UK) Limited) was that it must be for Diamond to seek to have an intra vires error corrected in any subsequent legal proceedings or arbitration commenced in terms of section 108(3) of the 1996 Act and paragraph 23(2) of the scheme.
Lady Paton refused the petition.