ENFORCEMENT OF ADJUDICATOR’s DECISION IS A MATTER OF CONTRACTUAL OBLIGATION

The Construction Group Centre Ltd v The Highland Council [2002] BLR 476

In The Construction Group Centre Ltd v The Highland Council [2002] BLR 476 Lord Macfadyen held that, when a court enforces the decision of an adjudicator, it does so because the parties have accepted a contractual obligation to give effect to that decision. In enforcing the decision the court is not deciding that the adjudicator’s decision was right. Rather, it is recognising that the adjudicator has made an award and that the defender (or, as the case may be, defendant) has accepted a contractual obligation, for the time being, to implement it. The adjudicator’s award is not binding on a court or an arbitration panel which is subsequently asked to adjudicate upon the dispute. The only sense in which a court or a panel of arbitrators must take account of the adjudicator’s award is that it must take account of any payments that have been made by way of implementation of the award. The second point decided by Lord Macfadyen is that a party to an adjudication who does not advance an argument before an adjudicator may be prevented from raising it before the court for the purpose of attempting to deprive the adjudicator’s award of the enforceability which the Housing Grants, Construction and Regeneration Act 1996 (‘the 1996 Act’) and the parties’ contract conferred upon it.