Paton (Petition Of)
Scotland, Outer House, Court of Session
1 March 2011
Lord Bannatyne began his opinion by deriving the following propositions from caselaw as to when an adjudicator could be said to have been in breach of the rules of natural justice. As a starting point the broad objective of the Construction Act 1996 had to be borne in mind. This broad objective was that the adjudicator was to provide a quick answer and that any need to have the right answer had been subordinated to that requirement. The adjudicator’s decision should not be interfered with by the court unless the manner in which he had gone about his task was obviously unfair. The adjudicator’s was not to act as an arbitrator or a judge. The adjudicator could use his own knowledge and experience in deciding disputed matters before him. If the adjudicator used his knowledge and experience to decide a contention placed before him by the parties, he did not have to obtain their further comments on that decision. The mere fact that the adjudicator arrived at an intermediate position for which neither party was contending did not of itself mean that his conclusion had to be referred to parties for their comments. If, however, the adjudicator used his own knowledge and experience to decide matters not advanced by parties, it would be his duty in order to comply with the rules of natural justice to revert to parties for their comments provided that these matters were of materiality in reaching his decision.
Lord Bannatyne then went on to apply these propositions to this case. The home owners contracted with the builder for the construction of a private dwelling house for them. The architect granted an eight week extension of time which meant that the builder was in culpable delay of some 20 weeks. The builder brought an adjudication in which he sought to challenge the extension of time awarded. The adjudicator substantially agreed with the builder and awarded an extension of time and prolongation costs. The home owners contended that the adjudicator had acted in breach of the rules of natural justice by wrongly using his own knowledge and experience in formulating the approach he adopted in coming to his decision. Lord Bannatyne rejected this contention on the facts of the case.