Mr and Mrs Paton engaged Douglas Jamie, to construct a one and half storey house. The contract was SBCC 1986 Scottish Minor Works Contract, with bespoke amendments. The works were completed late and an extension of time was granted but not for the full time claimed. A dispute arose as to the adequacy of this extension. Mr Jamie commenced an adjudication claiming an extension of time to the actual completion date.

The Adjudicator awarded Mr Jamie the extension of time sought, and awarded a total for prolongation costs and interest. In reaching his decision the Adjudicator had written to the parties asking them to comment on whether he could approach the decision as City Inn v Shepherd. Mr and Mrs Paton stated that they did not have any particular comment on the legal principles, but did not consider that the Adjudicator had enough information from Mr Jamie with which to reach a decision. Mr Jamie submitted there was enough information but that a critical path analysis could be problematic.

The Adjudicator wrote again to the parties stating that he considered he did have sufficient information with which to reach a decision. He set out that he would not carry out a separate delay analysis, but would use all of the information submitted by the parties to estimate the extension of time.

Mr and Mrs Paton commenced judicial review proceedings on the basis that the Adjudicator had breached the rules of natural justice by using his own experience and knowledge to decide material issues, but had not given the parties an opportunity to respond to the proposed methodology, which had arisen from this experience and knowledge.

The Judge found that the Adjudicator had not complied with the rules of natural justice. The Adjudicator had not embraced on a frolic of his own. The Adjudicator’s approach was one presented to him by Mr Jamie and upon which the Patons were able to comment. The Adjudicator’s findings were open from the documents and the parties’ submissions.
After analysing the existing case law, the Judge identified the following principles:-

1. As a starting point when considering whether the adjudicator has breached natural justice the broad objective of the 1996 Act must be borne in mind: namely, that the adjudicator is to provide a quick answer and that in order to do so a need to have the right answer has been subordinated to that.
2. Unless the manner in which the adjudicator has gone about his task is obviously unfair then his decision should not be interfered with by the Court.
3. That the task of an adjudicator is not to act as an arbitrator or a judge.
4. That an adjudicator may use his own knowledge and experience in deciding disputed matters before him.
5. That if the adjudicator uses such knowledge and experience to decide a contention placed before him by the parties he does not require to obtain their further comments thereon.
6. The mere fact that the adjudicator arrives at an intermediate position for which neither party was contending does not of itself mean that said conclusion must be referred to parties for their comments.
7. However, if he uses his own knowledge and experience to decide matters not advanced by the parties then if these matters are of a materiality in reaching his decision it would be this duty in order to comply with the rules of natural justice to revert to parties for their comments.