Macob Civil Engineering Ltd -v- Morrison Construction Ltd
The adjudicator's decision in the sub-contractor's favour should be enforced by way of summary judgement
12 February, 1999
The sub-contractor a payment dispute to adjudication. The adjudicator's decision was the contractor should pay the sub-contractor the sum claimed. The contractor did not comply with the adjudicator's decision and contended that the decision was invalid and unenforceable. The sub-contractor applied to the court seeking to enforce the adjudicator's decision by way of summary judgement. Dyson J enforced the decision by way of summary judgement. He stated that if the contractor's submission that the word 'decision' meant only a lawful and valid one with the result that in the event of it being challenged, it was not binding or enforceable until it was determined or agreed that the decision was valid was correct, this would mean that the effectiveness of the adjudication process introduced by the Construction Act 1996 would be substantially undermined. Parliament's intention was plainly (1) to introduce a speedy mechanism for settling disputes in construction contracts on a provisional interim basis by requiring adjudicators' decisions to be enforced pending the final determination of disputes by arbitration, litigation or agreement (see section 108(3) of the Act and paragraph 23(2) of the Scheme) and making provision for the timetable for adjudications very tight (see section 108 of the Act) and (2) To give the adjudicator a fairly free hand insofar as notwithstanding that he was required to act impartially, the adjudicator was permitted to take the initiative in ascertaining the facts and the law (section 108(2)(f) of the Act and paragraph 13 of Part 1 of the Scheme) with the result that he could conduct an entirely inquisitorial process or invite representations from the parties. Dyson J went on to say that there was no good reason for not giving the word 'decision' its plain and ordinary meaning insofar as (1) If Parliament had intended to qualify the word in some way, provision could have been made in the Act and (2) Although different considerations might apply if the adjudicator decided a dispute that had not been referred to him, if a decision on the issue referred was wrong, whether by reason of the adjudicator erring on the facts or the law or by reason of his having made a procedural error, it was still a decision on the issue. Advice Note In this early and ground-breaking decision, Dyson J set out the policy considerations and guidelines as to how the courts would approach the enforcement of adjudicators' decisions.