黑洞社区

鈥淣o, no,鈥� cries the aggrieved representative of the adjudicating party.  鈥淭his procedure is unfair; your award, Mr Adjudicator, will never be upheld.  You will have broken the sixth seal 鈥� there will be a great earthquake, and the sun will become as black as sackcloth, and the stars in the sky will fall to earth as a fig-tree casts its unripe figs when shaken by the wind, and every mountain and island will be moved out of their places 鈥� All because you, Mr Adjudicator, are being unfair.鈥�  鈥淥h buzz off,鈥� says the adjudicator, and so does the court.

I like this case: high level too. The three members of the Court of Appeal in Scotland gave ever such short shrift to complaints of unfairness in adjudication. And, it鈥檚 not just a whistle of disapproval in the case of Charles Henshaw & Sons Limited vs Stewart & Shields Limited, it is a belter of a message about wasting everyone鈥檚 time and money. It says: 鈥淭he adjudication procedure ought not to be derailed by the pursuit of technical legal arguments, particularly where those arguments are patently without merit.鈥� 

That鈥檚 precisely the message given previously by the Court of Appeal in England too. I will tell you about the case in a moment. Let me say this in passing. It takes a great deal of experience as an adjudicator to let these whinges about unfairness run off like water on a duck鈥檚 back. They all have to be considered and investigated and that goes on the bill.  Some adjudicators will be intimidated; some will become annoyed. Some representatives will lose the trust and confidence, which any tribunal is entitled to hold. 

Let鈥檚 have a referendum: 鈥楽hould Scotland be an independent country?鈥� becomes 鈥榮hould these different glass sizes be part of the original contract?鈥�

Charles Henshaw & Sons Limited was the main contractor for building works at the Gartnavel Royal Hospital Chapel, Glasgow. Stewart & Shields was their subcontractor for windows, curtain walling, roof-lights and canopy.  A modest 拢33,565.00 in an interim account was wrongly unpaid said the subcontractor. They called for the adjudicator. In this one, it starts to get expensive almost immediately, especially for the main contractor defendant. That party argued on day three that there were 10 reasons why the adjudicator should clear off. That 10 technical points on a 拢34,000 dispute is going some. The adjudicator has to analyse, take seriously, and spend time and pounds investigating.  He said 鈥渂uzz-off鈥�. (Although very professionally put in an award) He then went on and found all the money was payable and ought not to have been held up. But the award was not honoured.

Enforcement proceedings came on in the Sheriff鈥檚 Court.  The argument was the same ten points. They failed again. So they tried again in front of the Sheriff Principal. They failed again.  So they tried again in the High Court of Appeal called the Inner House. They failed again. Do you see what鈥檚 meant by time and money?  I guess by now, the 拢34,000 dispute is well and truly trumped by legal fees.
These technical points about there being no right to adjudicate are, by and large, all under the heading that the disputed works did not amount to works 鈥渦nder the contract鈥�. That contract had a provision regarding the size of the glazed screens. It said that 鈥渁ny variations would be subject to a re-quote鈥�.  Well, said the technical argument, that means any of those that cropped up (and they did) were out with the original contract. That鈥檚 a lawyer鈥檚 technical playground and worth a punt, perhaps. 

All of this in and out of court and instructing top class barristers is not to argue the substantive dispute. It鈥檚 merely to argue that the adjudicator had been unfair to decide the dispute. The contractor didn鈥檛 want to obey the adjudicator鈥檚 award (pay up the 拢34,000). These folk are in the trenches, dug in. Never mind all that, what do you make of the argument that this contract didn鈥檛 allow for variations (it didn鈥檛) yet there were different glass sizes needed?  Let鈥檚 have a referendum: 鈥淪hould Scotland be an independent country?鈥� becomes 鈥渟hould these different glass sizes be part of the original contract?鈥�  I bet the 鈥淵es鈥� vote comes from the real people in the building world and the 鈥淣o鈥� vote comes from lawyers, on a bad hair day. Well the only voters here were the three judges in the Court of Appeal, and they voted yes. Things in a building contract such as glass sizes are inherently provisional. This turn of events was not so different as to be required to be classed as other than part of the original contract works.  They were at variance but not full blown variation. So pay up the 拢34,000.

The big message for representatives: 鈥淚t must be recognised that it is only in a very limited class of case that the court will refrain from enforcing adjudicator鈥檚 determinations.鈥� 

The message too is that the inbuilt fairness in the system is that if either party doesn鈥檛 accept the outcome of the adjudication, it is wide open to litigate where matters are considered afresh.  Mind you the doors to that Ritz are also wide open. All you have to do is go in and pay.

Tony Bingham is a barrister and arbitrator at 3 Paper 黑洞社区s, Temple