Scottish Case Warns Adjudicators to Address All Parties' Submissions

A recent case gave a warning for adjudicators to ensure they consider all the party’s submissions and the issues raised. In the case of DC Community Partnerships Limited v. Renfrewshire Council (2017), the adjudicator failed to address the responding party’s defense and was held to have failed to exhaust his jurisdiction. This article will consider how adjudicators should address the issues in the dispute and the consequences if they are not addressed.

FINDINGS OF FACT: PROCEDURE

The adjudicator needs to identify the issues on which he is deciding. Once all the issues are identified the adjudicator should then proceed to the findings of facts on each issue. The adjudicator is given a “fairly free hand” in the procedure to determine the facts, but must understand which issues require determination. This is usually defined in a notice of intention to refer to adjudication — which is “the most important document in any adjudication, because it defines the dispute,” — and the subsequent responding party’s submissions in response. The adjudication only commences if there is a valid “construction contract” that meets the statutory definition for “construction operations.” Whether or not the contracts are in writing does not apply to contracts entered into after October 1, 2011, in England and Wales, and is no longer a finding of fact.

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