A dispute about the extent of an extension of time arose between the employer, City Inns, and the contractor, Shepherd. The architect awarded an extension of four weeks. In a subsequent adjudication a further five weeks were awarded by the adjudicator. City Inns sought to claim liquidated damages for the cumulative nine week period and repayment of loss and expense in respect of that period. An issue arose as to whether the decision of the adjudicator affected the onus of proof. Section 108(3) of the Act states that the decision of the adjudicator is "binding until the dispute is finally determined by legal proceedings, by arbitration …". Shepherd argued that the this must mean that the decision remained binding during the legal proceedings, and so had to be rebutted by the other party.

Lord MacFadyen held that the onus of proof was not affected, and that the court proceedings were not an appeal from the adjudicator's decision, as the matter would be heard afresh in arbitration or legal proceedings.