The cases are SW Global Resourcing Limited v Morris & Spottiswood Limited, a judgment of the Outer House of the Court of Session in Scotland and Arcadis UK Limited v May & Baker Limited (t/a Sanofi), decided in the Technology & Construction Court of England & Wales.Two separate jurisdictions, one very similar result. Morris & Spottiswood (M&S) and Sanofi did not like the decisions made by their respective adjudicators one bit. They refused to honour their awards. SW Global and Arcadis raised enforcement proceedings.
M&S and Sanofi cried foul. The adjudicator's decisions were unfair they said, breached the rules of natural justice and their decisions should be set aside. They threw every argument they could at the Courts hoping that one would stick; a "kitchen sink" of arguments said Akenhead J in the TCC.
They tried on breach of natural justice. The adjudicator took into account submissions that neither party put forward, said M&S, went off on a "frolic of his own" cried Sanofi. Not so, said the Courts. Next they argued bias - their minds were made up before the case even started, factors were taken into account that showed the decision was always going to go against them! The Courts didn’t want to know. Failure to exhaust remit. Acted ultra vires by considering themselves bound by a previous decision. Took an erroneously restrictive view of jurisdiction. Failed to give adequate reasons. Failed to consider a defence on delay. They were all in there. M&S even advanced an argument that has not been seen for a while in the context of adjudication - that the adjudicator's decision was so unreasonable as to amount to irrationality on Wednesbury grounds. The Courts gave short shrift to each and every one of these arguments.
The statements made by the Court in both cases will come as no surprise to many. The process of adjudication leads only to an interim resolution of disputes. The adjudicator is asked to make interim decisions under tight time constraints. The need to have the "right" answer has been subordinated by the need to have an answer quickly. Any error can be corrected in any final determination of the parties' contractual rights. The adjudicator may make glaringly obvious errors of law and fact within his jurisdiction. The Courts brought out all of these principles from previous case law as they have many times before.
In short, parties should think carefully before asking a Court to set aside an adjudicator's decision. The Courts are unlikely to be impressed. No matter how many arguments you throw at them.