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Posted April 23, 2018 | Published in General

Sheriff clears up shoot-out between two adjudications

This really is a ‘bite-sized chunk’ blog on a recent Scottish case (I hear your cheers from my house – yes; writing blogs is often an ‘extra curriculum activity’).

The case is Pentland Investments Ltd v Aitken Turnbull Architects Limited [2018] SC EDIN 16, heard in a commercial action in the Sheriff Court, Edinburgh heard before Sheriff N A Ross (I am so glad Scotland still has Sheriffs).

The set-up is simple: two separate adjudications, started simultaneously, against different parties (the architect and the engineer) relating to the same project.

The standoff to be decided by the Sheriff was that the same adjudicator had been appointed in each adjudication, and the architect objected to this. Clearly up to speed with the Scheme, the architect cited Paragraph 8(2) of Part I of the Scheme which provides that one adjudicator may only adjudicate at the same time on related disputes under different contracts with the consent of both parties.

"The standoff to be decided by the Sheriff was that the same adjudicator had been appointed in each adjudication, and the architect objected to this."

This was the same project but was the referral of disputes under different contracts. The architect had clearly not consented.

The Sheriff, not being an outlaw, followed English authorities on this point (albeit none were Supreme Court or House of Lords and were therefore not binding in Scotland) and agreed with the architect.

The Pursuer (a Scottish Claimant) got run out of town.

Reflecting on the decision, which on its face was a relatively straightforward decision, it is rare (in my experience, shared by my colleagues) that an adjudicator resigns when his jurisdiction is challenged. Our experience is that only a very small percentage (less than 2 or 3 every 100) of adjudicators resign. It is right that an adjudicator should not resign when faced with the many spurious and strategic ‘jurisdictional challenges’ that are made, however, there will be occasions where some challenges are as simple as this where the onus is on the adjudicator to make the right decision and resign. With no obvious authority in its favour this also appears to have been an odd enforcement action to raise, considering the costs involved.

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