Cases Part 2 2023 - final

Comment

We already knew that, at least where the Scheme applies, an adjudicator cannot

withhold the decision pending payment of fees. The interest of this case lies in

wider questions. It assumes that it is permissible for an adjudicator to seek

security for fees, as in this case, whether from the referring party only or from both

parties. In this case, the adjudicator's terms of appointment entitled the

adjudicator to require security from the referring party, but he sought security

from both parties. Could the responding party have refused to give security? And

if they had, might it have led to a risk of unconscious bias or the appearance of

bias? What would have happened if both parties had refused to give security or

further security? The questions did not directly arise and therefore are not

addressed. The whole question of security for fees is fraught with danger for the

adjudicator and the parties, especially where there are jurisdictional objections.

Contractual adjudication can deal with it by its own rules. Statutory adjudication

will sooner or later require changes to the Scheme as it seems doubtful that it can

or should be dealt with on an incremental basis by the courts.

Natural Justice – challenge to enforcement of award and claim for final determination of validity of final account statement

Atalian Servant AMK Ltd v B W (Electrical Contractors) Ltd [2023] ScotCS CSOH 14

Lord Sandison (16 February 2023) AMK was subcontractor for works at Lord’s cricket Ground and engaged BW as its electrical subcontractor. Under the bespoke subcontract between AMK and BW,

AMK had to provide a statement as to the practical completion of the works. BW

then had two months to present its final account and doing so within that period

was a condition precedent to any entitlement to payment on that account. AMK

then had 28 days to provide a final account statement showing the sum it

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