Cases - Ritchie Brothers (PWC) Ltd v David Philip (Commercials) Ltd (2004)
Record details
- Name
- Ritchie Brothers (PWC) Ltd v David Philip (Commercials) Ltd
- Date
- (14 April 2004)
- Citation
- 2004 Scot (D) 21/4
- Legislation
- Keywords
- Construction contracts - adjudication - whether decision reached after expiry of time limit - Scheme for Construction Contracts (Scotland) Regulations 1998, paragraphs 7 and 19
- Summary
-
In this case David Philip sought to defend the enforcement of an adjudicator's decision on the basis that the decision was issued late and was therefore unenforceable.
To decide whether or not the adjudicator's decision was late and by how much it was necessary to establish the commencement of the adjudication process.
The parties were agreed that the 28-day period started from the date of the referral notice. The judge concluded that this date was the date on which the referral notice was posted and not the date on which it was received.
That period expired on 16 October but it was not until 21 October that the adjudicator requested (and was granted by the referring party) an extension of time for the making of his decision. Meanwhile the Responding Party had already challenged the adjudicator's jurisdiction.
It is clear that in similar circumstances in arbitration the arbitrator's jurisdiction would have ended on 16 October. However, the judge at first instance concluded that in light of the nature and purpose of adjudication it would make little sense that the process of adjudication be re-commenced simply because a decision was late. In other words, the judge concluded that the provisions relating to the times in which the adjudicator should reach his decision are directory rather than mandatory entailing nullity of any late decision. Therefore the late request for and granting of an extension of time was valid.
This part only of the judgment was appealed and on appeal it was over-turned by a majority of 2-1. Therefore the appeal court ruled that the adjudicator's jurisdiction did come to an end on 16 October and the subsequent request for and granting of an extension of time to that period was ineffective to reinstate the adjudicator's jurisdiction.
Taking into account the extension of time the adjudicator's decision should have been made on 23 October. In fact, on 23 October the adjudicator wrote to the parties asking for his fees (thereby indicating that he had reached his decision) and published his decision on 27 October after the referring party had undertaken to pay his fees.
The judge held that where the decision is to be composed in writing the processes of composing a written decision and the subsequent communication of a copy of the written decision are distinct and that a requirement timeously to reach a decision may be satisfied, even if there is a failure to deliver a copy of the decision within a particular period of time, or as soon thereafter as may be reasonably practicable. In this case the judge concluded that the decision had been made by 23 October even though it had not been communicated until 27 October.
This part of the judgment was not appealed.