A caveat for adjudicators: Be fully exhausted by your decision
I have come to realise that one reason I enjoy providing blog updates in respect of Scottish case reports is that I appear to have what will be considered I am sure a somewhat unusual nostalgia when it comes to Latin. I spent my early legal years incorporating documents into pleadings brevitatis causa and quoad ultra denying as much as I could. This use of Latin is a byproduct of the fact that Scots law is heavily influenced by Roman civil law, which is odd as when the Romans reached Scotland they took a quick look around and Hadrian built his wall to keep the “barbarians” in Scotland. A Roman version of Trump (but arguably beneficial to both sides!).
Things have “modernised” somewhat and Latin is being used less. However, a recent case referenced a fantastic Latin phrase: ope exceptionis. Pure Latin gold; like something straight out of a Dan Brown novel (but much less exciting).
It means “by way of exception” and was used in the case of DC Community Partnerships Limited v Renfrewshire Council 2017, heard in the Outer House of the Court of Session. The facts related to whether or not an adjudicator had exhausted his jurisdiction in issuing his decision, as a consequence of which Renfrewshire Council had not paid the amount awarded in the decision. DC Community issued enforcement proceedings.
The context is that very late in the relevant adjudication proceedings (at surrejoinder stage, i.e. the fifth submission document) the Responding Party (Renfrewshire Council) introduced a defence that it had a contractual right of set-off against the sum claimed as due, notwithstanding the lack of a pay less notice in respect of the certified sum, for the not insignificant amount of nearly £500,000.
" The facts related to whether or not an adjudicator had exhausted his jurisdiction in issuing his decision, as a consequence of which Renfrewshire Council had not paid the amount awarded in the decision. "
In the decision, the adjudicator made general statements that he had considered all arguments put by the parties, but made no specific reference to the set-off defence. Renfrewshire Council asked the court for reduction ope exceptionis of the adjudicator’s decision, i.e. having it set aside; declared null and void.
Lord Doherty confirmed the established law that the scope of an adjudication is defined by the notice of adjudication together with any ground founded upon by the responding party to justify its position in defence of the claim made. In this respect, the failure by an adjudicator to address a material defence made by the Responding Party was a failure by that adjudicator to exhaust his or her jurisdiction.
It was found that the adjudicator had made no explicit reference to the defence of set-off in the decision. Further, no intelligible explanation had been provided as to why that defence was rejected. In the circumstances, and recognising that the court should hold that there has been a failure to exhaust jurisdiction in only the plainest of cases, Lord Doherty was satisfied that such a failure was evident in this case.
Lord Doherty reduced (in essence declared it null and void) the adjudicator’s decision (one last time) ope exceptionis.
This case provides a clear review of the relevant law on the scope of an adjudicator’s jurisdiction and how far an adjudicator needs to go to deal with the parties’ arguments (albeit with a Scottish bias). It also provides a clear example of circumstances in which an argument such as this, which rarely succeeds, will succeed. As ever, whilst Scots law cases such as this are not binding in England they are persuasive, and this is a useful one to keep in mind as we approach the “ambush season”.
It is often the case that an individual within a particular profession is not particularly good at following his or her own advice; they do not practise what they preach. I was guilty of this a couple of weeks ago. Anyone who read my previous blog will recall I advised against partaking in the “joys” of dive bars. Little did I realise that within a week of this dull dad-like warning I would ope exceptionis end up in such an establishment, in Glasgow of all places (dive bars dive deeper in Glasgow than most places!). However, can anyone tell me when such places started serving 12-year-old Highland Park?