REUTERS | Kim Hong-Ji

Did the adjudicator ask himself the correct question?

As an adjudicator, asking yourself the correct question (even if you get the answer wrong) is one of the keys to issuing a decision that should be complied with and which the parties will be able to enforce in the TCC. Over the years, we’ve had several judgments on the point. They date back to Dyson J’s 1999 judgment in Bouygues v Dahl-Jensen, where he said:

“If [the adjudicator] has answered the right question in the wrong way, his decision will be binding. If he has answered the wrong question, his decision will be a nullity.”

In fact, Dyson J had borrowed this phrase from a much earlier rent-review case (Nikko Hotels (UK) Ltd v MEPC plc [1991] 2 EGLR 103).

Dyson J went on to ask himself a number of questions, including whether the adjudicator had made a mistake, and if so, how that mistake should be characterised:

“If the mistake was that he decided a dispute that was not referred to him, then his decision on that dispute was outside his jurisdiction, and of no effect… But if the adjudicator decided a dispute that was referred to him, but his decision was mistaken, then it was and remains a valid and binding decision, even if the mistake was of fundamental importance.”

The issue came up recently in the Scottish courts (Bell v Carfin). Here the contractor argued the adjudicator had asked himself the correct question and therefore it did not matter if his answer was wrong, since his decision should still be enforced. Not unsurprisingly, the employer denied this, and argued that the adjudicator had no jurisdiction because he was deciding a dispute that had already been referred to the first adjudicator. Consequently, his decision to continue with the second adjudication was a mistake because he had not properly analysed the jurisdiction issue.

What interested me about this judgment was not so much the court applying previous authority and holding that the second dispute was different to the first, but rather that it was prepared to look so closely at the law connected with the right question, wrong answer point. You don’t always see that, and perhaps it suggests a different approach north of the border.

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