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Monday, September 30, 2019

Dickie & Moore Ltd v McLeish & Others

[2019] CSOH 71  

D&M sought summary enforcement of an adjudication decision. One of the issues related to the involvement of a Mr Murray, a quantity surveyor and claims consultant, who had acted as the adjudicator’s pupil. Neither party had objected to this. However, they were not informed until the adjudicator issued his fee-note that Mr Murray had also provided other assistance during the adjudication, for which he was to be paid. 

The adjudicator was cross-examined and said that he considered that he had a duty to assist those who wished to gain experience of adjudication. Indeed, he had acted in this way before. Insofar as Mr Murray had acted as a pupil, he was given access to the documents, attended hearings, and was kept advised of developments in the adjudication. Mr Murray’s role in the adjudication had involved providing assistance by (i) populating the Scott Schedule; (ii) taking meeting notes and producing the action points; and (iii) proof reading the decision. These were not pupillage tasks. The Scott Schedule had had to be updated to reflect changes in the parties’ positions. The adjudicator had decided every issue that had arisen in the adjudication himself, without any oral or written advice from Mr Murray suggesting an answer to any issue. Nor had he used Mr Murray as a sounding board to test his own views. 

McLeish did not suggest that the adjudicator had not acted in good faith. However, they did suggest that there had been a material breach of natural justice - an opportunity had been afforded for injustice to be done. The adjudicator had obtained quantity surveying assistance and advice from Mr Murray on significant matters. The parties had not been told about this and they had had no opportunity to comment on it. D&M’s position was that the services provided had been of an administrative, secretarial and arithmetical nature. The adjudicator had reached each and every determination himself. 

Lord Doherty agreed noting that the services which Mr Murray provided were essentially of an administrative nature. They were not quantity surveying advice. All of the material decisions in the adjudication were taken by the adjudicator himself solely on the basis of the information which the parties put before him. Accordingly, while the Judge thought that the adjudicator ought to have told the parties what Mr Murray was doing, in the whole circumstances his failure to do so was not a material breach of the requirements of natural justice. 

McLeish also suggested that a dispute had not crystallised. The Judge, referring to Coulson on Construction Adjudication, said that when a party resists enforcement of an adjudicator’s award on the grounds that the relevant dispute had not crystallised the court should adopt a: “robust, practical approach, analysing the circumstances prior to the notice of adjudication with a commercial eye.” An over-legalistic analysis should be avoided. The court should avoid any: “nit picking comparison between the dispute described in the notice and the controversy which pre-dated the notice.” 

Here, in valuation 17, D&M had sought an EOT (plus associated prolongation costs) of four weeks (for weather) and a prolongation claim of 13 weeks. The EOT sought in the adjudication included 16.2 weeks for groundworks and 30.3 weeks for issues to do with the superstructure shell. Looking at the matter “broadly”, the claims in the Notice were of a different nature and order of magnitude from the previous disagreements. Therefore: “a very material part of the dispute described in the Notice had not crystallised before the Notice was served”. This meant that the question of severance arose. Could the time-related disputes be severed from the rest of the dispute? However as that had not been explored in the hearing, further submissions were required. 

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