Atholl Developments (Slackbuie) Limited -v- UBC Group Limited [2010] CSOH 94.

21 July 2010

Atholl, a property developer, and UBC, a contractor were in dispute about the true value of UBC's final account. Atholl referred the dispute to adjudication. The adjudicator decided that the correct value was at a level between those respectively contended for by the parties.

In a second adjudication UBC sought payment of the balance due in terms of the first adjudication. The adjudicator made an award accordingly. UBC sought summary decree to enforce the award. Atholl sought judicial review to reduce the award, arguing that, in adjudication 1, the adjudicator had made a series of such serious errors as to demonstrate a failure on his part to properly consider Atholl's arguments.

Lord Glennie refused to reduce the decisions and granted summary decree in favour of UBC. He restated the principle that an adjudicator's decision will not to be reduced on account of errors of fact or law. He also decided that, as no attack had been made to adjudication 1 before adjudication 2 had commenced, the adjudicator had no choice but to follow adjudication 1, as he had done. This latter point is very significant. It is common these days for parties to construction contracts to engage in a series of adjudications, each dependent to some extent on the earlier decisions. It appears that a failure to challenge an earlier decision on grounds of jurisdiction or natural justice will result in the ability to do so later, once a further decision has been reached, being lost. Parties may have to an challenge adjudicator's decision very quickly, if they want to do so at all.

Gavin Walker of Axiom Advocates was junior counsel for UBC.

http://www.scotcourts.gov.uk/opinions/2010CSOH94.html