‘DECISION’ OF ADJUDICATOR THAT HE WAS UNABLE TO DECIDE A NULLITY

Ballast plc v The Burrell Company (Construction Management) Ltd [2001] BLR 529

In Ballast plc v The Burrell Company (Construction Management) Ltd [2001] BLR 529 Lord Reid, sitting in the Outer House of the Court of Session, held that the ‘decision’ of an adjudicator that he was unable to decide the dispute between the parties was a nullity. An adjudicator who is unable to make a decision within the time-frame allowed by the Scheme should resign and not issue a decision to the effect that he is unable to decide. Lord Reid also drew attention to the procedural differences which exist between Scotland and England in relation to judicial review (in that the scope of judicial review appears to be wider in Scotland than it is in England) and this led him to formulate the grounds for intervention in Scotland in terms that appear to be rather broader than those applicable in England. In other words, he appeared to place slightly less emphasis on speed and more emphasis on the need to protect the parties against adjudicators’ decisions that are unjust (for further consideration of the scope of the decision see Shimizu Europe Ltd v Automajor Limited (unreported, Technology and Construction Court, 17 January 2002), discussed below at p. 9).