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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