This was a reclaiming motion from an interlocutor of Lady Paton (27 June 2002) in a petition for judicial review of an Adjudicator's decision. The petitioners, Gillies Ramsay Diamond were a firm of building surveyors. They had been employed by the respondents, PJW Enterprises Limited as contract administrators for a building contract at 40 Stanley Street, Glasgow. PJW had entered into a building contract with R&R Construction (Scotland) Limited, the contractor.

During the course of the works there were 5 adjudications. As a result, PJW became liable to the contractor for additional payments. PJW alleged that this was caused by a breach of contract on the part of Gillies Ramsay Diamond. PJW commenced an adjudication, and the Adjudicator found against Gillies Ramsay and awarded PJW damages in the sum of £29,119.80.

Gillies Ramsay raised 5 challenges:

1. there was no construction contract;
2. that an adjudicator could not award damages in Scotland;
3. that PJW had in fact suffered no loss;
4. that the Adjudicator had failed to take into account material consideration during the course of the making of his decision; and
5. that a court can review an error of law even if it is intra vires.

The opinion was delivered by Lord Justice Clerk. By reference to the Act it was clear that "surveying work" was covered by the Act, and therefore the contract was a construction contract. The words "dispute arising under the contract" in Section 108(1), and paragraph 1 of the Scheme, were wide enough to cover the remedy of damages. The authorities on the "no loss point" were irrelevant because the appropriate way to challenge an adjudicator's decision is to re-hear it in arbitration, litigation or settle it by agreement. In that respect an adjudicator's decision, although provisional, was immediately enforceable.

While the Adjudicator's reasons for his decision were unintelligible, and he had failed to give proper and adequate reasons for his findings of the breach of contract, his errors were intra vires errors of a law that he was able to make. The Adjudicator had understood and asked the right question, but his reasons for the decision were unsatisfactory.

Finally, he considered the question as to whether the court could review those errors. Reference was made to the judicial review case of Anisminic v Foreign Compensation Commission [1969] 2 AC 682 and other related cases. He considered that those authorities were irrelevant as they lay in the field of public law, and adjudication was not an aspect of public law but was a contractual dispute resolution process. Therefore, the Adjudicator had asked himself the correct question and his decision was not reviewable (Bouygues (UK) Limited v Dahl - Jensen (UK) Limited [2001] 1 All ER 1041). He noted that the decision was obviously wrong but that there was no redress in the present proceedings, so that the legislation had created a new set of problems.

Lord Caplan agreed, as had Lord MacFadyen. Lord MacFadyen added with interest that he was wrong in Homer Burgess Limited v Chirex (Annam) Limited 2000 SLP 277 to treat an adjudicator as being in a similar position to that of a statutory decision maker and thus apply judicial review considerations.