In December 2006 the petitioners, Atholl Developments (Slackbuie) Limited, entered into a construction contract with UBC Group Limited, on the standard form SBCC Scottish Building Contract with Approximate Quantities May 99 Edition (January 2004 revision), with additional incorporations and other terms agreed by the parties. Clause 41A of the standard terms contained provisions for Adjudication.

Two adjudications occurred during the lifetime of the contract, both concerning the valuation of the Final Account for the Contract. The petitioners applied to reduce these decisions of the Adjudicator by petition of judicial review. The petitioners focused their criticism on the conduct of the first Adjudication, contending that the Adjudicator made a number of clear errors in his decision making, and also failed to pay due attention to certain documents and submissions submitted by the petitioners.

The court noted that a very large number of items were put before the Adjudicator for his determination, resulting in many papers for the Adjudicator to assess, and lots of points to consider in a relatively short period of time. The court agreed with the petitioners that errors had been made by the Adjudicator, however, the court emphasized that the Adjudicator had not benefitted from the same level of intricate preparation and presentation which was put before the court, and that in the circumstances, the Adjudicator had not exceeded his jurisdiction and had not failed to exhaust his jurisdiction. Nor was he in material breach of the rules of natural justice. The court noted that while the evidence put before the court showed that the Adjudicator may well have made clear mistakes, this was liable to happen in Adjudication, and was not a valid basis for the reduction of an Adjudicator’s decision in itself. Prayer of petition for judicial review dismissed.

Court: Court Of Session (Outer House) (Scotland)

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