Allied London & Scottish Properties Plc -v- Riverbrae Construction Limited
The employer's application for judicial review of the adjudicator's decision payments should be made 'peremptorily' on the ground that the adjudicator failed to implement paragraph 23(1) of the Scheme for Construction Contracts failed
12 July, 1999
The contractor carried out work under different contracts on different sites and made payment claims under them. The contractor referred the disputes in this connection to adjudication and the adjudicator ordered the employer to pay four specific sums to the contractor within 14 days. The employer applied for judicial review of these decisions on the ground that the adjudicator did not fulfill his obligation under paragraph 23(1) of the Scheme for Construction Contracts by failing to give consideration as to whether he thought it ?fit? to order the employer to comply ?peremptorily? with his decision (ie within 14 days). Paragraph 23(1) provided that the adjudicator could, if he thought fit, order any of the parties to comply peremptorily with the decision. The employer contended that the adjudicator should have given such consideration in the light of its claims to set-off sums allegedly due to it under separate and different contracts which would have extinguished the amounts due to the contractor under the decision. Lord Kingarth held that the employer's application for judicial review failed on the basis that it could not be suggested that the adjudicator did not take into account matters he was bound to take into account or that he made any error of law going to the root of his jurisdiction. This was on the basis that the adjudicator had plainly addressed whether the employer had a right of retention and found that it had no such right by reason of its claims under the other contracts and the employer had not challenged this finding. In addition this finding was necessarily to be regarded as part of the adjudicator's assessment as to whether to order immediate payment. The adjudicator had dealt with the employer's argument that any sums to be paid to the contractor should be placed on deposit and his finding in this respect was not and could not be challenged. It was not the case that in the absence of submissions the adjudicator had been bound to assess whether there might have been an alternative means available and appropriate for delaying payment. Advice Note The adjudicator under paragraph 23(1) of the Scheme for Construction Contracts is not under a duty to demonstrate that he has given detailed consideration to whether to order payment ?peremptorily?, ie within 14 days.