Mr. and Mrs. Paton entered into a Scottish Minor Works contract with a builder for the construction of a house. The works were delayed and instead of being completed in May 2008, practical completion was only achieved on 12 December 2008.
The Patons’ architect granted the builder an eight week extension of time, taking the contractual completion date to 26 July 2008. Dissatisfied with this and also that the Patons had withheld sums against an interim and a final certificate, the builder referred the matter to an adjudicator, Mr. Ian Strathdee. Before the adjudicator, the builder argued that he was entitled to an extension of time which would coincide with the date for practical completion because of additional works ordered by the Patons, i.e. an extension of time of about 20 weeks. The adjudicator agreed both with this and that the sums had been wrongfully withheld. The Patons sought a judicial review of the decision, arguing that the adjudicator had acted in a manner which had breached the requirements of natural justice.
The builder had produced no programme or delay analysis to support its claim to an extension of time, nor did he explain what other works were being carried out at the time of the alleged delays. He also failed to account for any concurrent delays. The Patons had expressed concern to the adjudicator that he did not have sufficient information with which to assess the extension of time claim. The adjudicator responded that he understood the submissions by both parties, and did have sufficient information as it was clear from the contract programme what the critical path was intended to be. He said that he did not need to construct his own delay analysis, but could use the programmes, photographs and other evidence.
The Patons criticised the adjudicator’s approach to determining the relevant events, arguing that it had not been one which he had not been entitled to take upon the submissions before him.
The adjudicator had not acted in breach of the rules of natural justice or acted unfairly. The approach taken to assess the delay had been properly before him. The parties had made detailed comments on the approach to assessment which he should adopt, and the sufficiency of information before him to enable him to do it. From the documentation, the parties should have been well aware of the approach to assessment he intended to take. It could not be said he was “embarking on a frolic of his own”.
The adjudicator’s position in this case was totally different from that taken by the adjudicator in the Balfour Beatty v London Borough of Lambeth case. In that case, the adjudicator had been taking an approach which the referring party had not been relying upon, and which the defending party had not been given the opportunity to comment upon. Here, the adjudicator had taken the approach which was presented to him by the builder, and upon which the Patons had been able to comment. It could not be said that the adjudicator had undertaken a delay analysis without first giving the parties an opportunity to comment upon it. He had also advised the parties about how he was going to analyse the critical path, and had acted fairly and with natural justice.
The adjudicator had applied his knowledge and experience to the submitted contract programme, the minutes and the various other documents and submissions which had been made to him. He was not in any sense going off on a “frolic of his own” and applying in some way his knowledge and experience to matters which were not before him. He had not acted unfairly.
Opinion of Lord Bannatyne in the Petition of Mr. and Mrs. Jack Paton for Judicial Review; 1 March 2011
[2010] CSOH 40
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