BWE argued the first adjudication was commenced in time, and upon the
resignation of the adjudicator they had followed the correct procedure by serving
a new notice. All that was required was that proceedings be commenced within 20
days, and this was done. The adjudicator had answered the right question, and the
parties had been given and had taken every opportunity to deal with the matters
he had raised.
The decision
Clause 33.4 provided that the FAS was final and binding on BWE, unless the parties
agreed to modify it or BWE commenced an adjudication or court proceedings within
20 working days. Adjudication proceedings were commenced within that time and
the FAS was therefore no longer final and binding. The adjudication proceedings did
not come to an end on the resignation of the first adjudicator. BWE followed the
correct procedure in serving a new notice. The two notices were very similar. The essential question was the same: what sum was properly due? “ The resignation of the first adjudicator did not terminate BWE's right to challenge the FAS. BWE have their foot firmly in the door, as permitted by clause 33.4, by virtue of both the adjudication and the timeous, and still pending, litigation. ” The challenge on that ground failed. The court agreed with the dictum of Lord Briggs in Bresco : 8 “pay now, argue later.”
The court also agreed with the principle of fairness as adopted by Lord Malcolm in
J&A Construction from the English case of Absolute Rentals 9 . The court found no
unfairness here. The adjudicator gave due notice to the parties of his line of thinking
8 Bresco Electrical Services v Michael J Lonsdale (Electrical) [2020] Bus LR 1140 at paragraph 12.
9 J & A Construction (Scotland) v Windex [2013] CSOH 170, Lord Malcolm adopted (at para [7]) a passage from Absolute Rentals v Gencor Enterprises, unreported, 16 July 2000.
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