In the court below, the commercial judge had found:
(a) The question put to the adjudicator could scarcely have been wider: what
sum (if any) was due from AMK to BWE? The Award was a genuine attempt to
answer that question.
(b) As to the issue of the validity of the FAS, the adjudicator was clearly entitled
under paragraphs 13 and 20 of the Scheme (for Scotland) to raise it with the
parties. Once he had done so, there was extensive correspondence about it in which every opportunity was offered and taken for each party’s position to be amply elucidated. In accepting BWE ’s position, he had obviously rejected AMK’s position. (c) Residual complaints were similarly dismissed, each party having ample
opportunity to advance its case.
On AMK’s action to finally determine the validity of the FAS , the judge held that it would undermine the valid decision of the adjudicator to allow AMK, in effect, to set
off their FAS claims against the Award.
Before the Inner House, AMK contended that the adjudication was out of time and the FAS, therefore, final and binding. The first adjudication notice was not a ‘ foot in the door ’ allowing the second notice to be in time. The adjudicator had not answered the question posed but had devised his own questions and answers. He had failed to allow them a fair opportunity to address him on his proposed method of valuation. He had treated the sub-subcontract as ‘ beck and call ’ and not valued the works as required under the sub-subcontract. Indeed because of the weight of
material, they had not had enough time to address the new evaluation. He had not
addressed their various defences. All in breach of the rules of natural justice.
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