Ritchie Brothers (Pwc) Ltd -v- David Philp (Commercials) Limited
Case reference:
[2004] ScotCS 94
Wednesday, 14 April 2004
Key terms: Adjudication - enforcement - the Scheme (Scotland) - SI 1998/687 - ultra vires - date of decision - expiry of time period - late decision - functus officio - resignation
This case concerns the enforcement of an adjudicator’s decision pursuant to the Scheme for Construction Contracts (Scotland) Regulation 1998 (SI 1998/687). The defenders, David Philp (Commercials) Limited argue that the decision was ultra vires because the decision was reached after the expiry of the time period for the giving of the decision pursuant to the Scheme. The pursuers argued that the decision was not late, but even if it was the lateness did not render the decision void.
The pursuers put forward two alternative arguments. First, the start date was the date when the Referring Party sent off the Referral Notice. The pursuers argued that the start date did not commence until the Referral came into the adjudicator’s possession. Second, that the decision was reached when the adjudicator informed the parties that he had reached his decision and would release it upon payment of his fees. The alternative argument was that the decision was not reached until delivered to the parties. Lord Eassie held that the start date, in accordance with the Scheme, is the “date of the Referral Notice” and implies that the Notice will have a date on it and that it will be sent to the adjudicator on that date. The date of actual receipt was therefore irrelevant. If there is a delay the adjudicator has a remedy; he can ask for more time. If more time is refused he can resign.
In respect of the expiry of the time period, reference was made to St Andrews Bay Developments Limited v HBG Management Limited 2003 SLT 740. In that case an adjudicator withheld a decision until she had received her fee. The consequence was that the decision was not communicated to the parties until after the date for her to come to her decision. Lord Eassie in this case reached a different decision. He said that pursuant to the Scheme the decision need not be communicated. He held that the decision had been validly reached by the adjudicator, and could have been obtained on that day by the parties by simply paying the fee. The delay was caused not by the adjudicator’s failure to deliver the decision, but by a delay in paying the adjudicator’s fee in order to obtain the decision. In any event, the time periods in the Scheme were directory rather than mandatory, and so did not nullify a late decision. Delay does not bring the adjudication process to an end, but allows either party to commence a fresh adjudication. He therefore granted the motion for the pursuers for decree de plano.
The pursuers put forward two alternative arguments. First, the start date was the date when the Referring Party sent off the Referral Notice. The pursuers argued that the start date did not commence until the Referral came into the adjudicator’s possession. Second, that the decision was reached when the adjudicator informed the parties that he had reached his decision and would release it upon payment of his fees. The alternative argument was that the decision was not reached until delivered to the parties. Lord Eassie held that the start date, in accordance with the Scheme, is the “date of the Referral Notice” and implies that the Notice will have a date on it and that it will be sent to the adjudicator on that date. The date of actual receipt was therefore irrelevant. If there is a delay the adjudicator has a remedy; he can ask for more time. If more time is refused he can resign.
In respect of the expiry of the time period, reference was made to St Andrews Bay Developments Limited v HBG Management Limited 2003 SLT 740. In that case an adjudicator withheld a decision until she had received her fee. The consequence was that the decision was not communicated to the parties until after the date for her to come to her decision. Lord Eassie in this case reached a different decision. He said that pursuant to the Scheme the decision need not be communicated. He held that the decision had been validly reached by the adjudicator, and could have been obtained on that day by the parties by simply paying the fee. The delay was caused not by the adjudicator’s failure to deliver the decision, but by a delay in paying the adjudicator’s fee in order to obtain the decision. In any event, the time periods in the Scheme were directory rather than mandatory, and so did not nullify a late decision. Delay does not bring the adjudication process to an end, but allows either party to commence a fresh adjudication. He therefore granted the motion for the pursuers for decree de plano.