Adjudication - Enforcement

The Scottish case of SW Global Resourcing Ltd v Morris & Spottiswood Ltd, [2012] CSOH 200, concerned the enforcement of an adjudicator's decision for an alleged breach of the rules of natural justice and apparent bias; failure to exhaust remit; ultra vires; Wednesday unreasonableness and internal contradictions; and lack of adequate reasoning.

The Facts

Morris & Spottiswood Ltd ("M&S") was the main contractor employed by Historic Scotland to carry out building works at Stirling Castle. SW Global ("SW") was a subcontractor. The subcontract was formed by correspondence and a purchase order which the parties agreed was a construction contract within the meaning of the HGCRA.

In November 2010 SW referred a dispute over disruption costs and loss and expense to adjudication and Mr John Bell was appointed as adjudicator. He rejected M&S' challenge to his jurisdiction on the ground that the issue referred to him had been decided in a previous adjudication by Ms Janey Milligan. He determined that the previous decision related to an interim application for loss and expense and consequently awarded SW £73,303.16 plus interest. In this action SW sought to enforce Mr Bell's decision. M&S argued that Mr Bell's decision was a nullity on the following five grounds:

Breach of natural justice and apparent bias; Failure to exhaust remit; Ultra vires; Wednesbury unreasonableness and internal contradictions; and Lack of adequate reasoning. The Issues

The issues in this case are:

Whether Mr Bell had breached the rules of natural justice and had exhibited apparent bias; Whether Mr Bell had failed to "exhaust his remit" and failed to provide adequate reasons for his decision; Whether Mr Bell had acted in an ultra vires manner. The Decision

The judge ruled that Mr Bell had not breached the rules of natural justice on the basis that he had used his own knowledge and experience to assess the parties' contentions between their respective positions. It was also decided that there could be no inference of bias, particularly given that Mr Bell had awarded SW a significantly lesser sum than that SW had claimed and rejected some of SW's claims due to a lack of adequate documentation.

The submission that Mr Bell had failed to exhaust his remit was rejected on the basis that his decision was founded upon the fact that clause 46.3 had not been incorporated into the subcontract and as such constituted an adequate reason for his decision. The judge rejected the claim that Mr...