Depending on the value of the decision, the proceedings will be raised in either the Sheriff Court of the Court of Session. The Sheriff Court has jurisdiction over any disputes under £100,000. Regardless of which court is used, the proceedings should ideally be raised as a Commercial Action, which aims to resolve actions more quickly.
Guidance from the Commercial Judges of the Court of Session recognises that disputes over the enforceability of adjudicator's decisions should be determined swiftly.
When enforcement proceedings are raised, the paying party only has two grounds on which it can seek to challenge enforcement. The grounds are:
1 that the adjudicator has done something out with their jurisdiction (i.e. made a decision they did not have power to do); or
2 that the adjudicator has breached the grounds of natural justice (e.g. has not given parties an equal opportunity to present their case or communicated with one party only).
There is potentially a third ground and that is if the adjudicator has carried out a fraud, however this is a highly unlikely situation and for most purposes the above two grounds are the only ones the court will consider when determining if a decision should be enforced or not.
It should be remembered that the court will enforce a decision even if the adjudicator has got something wrong in law or fact.
The grounds for challenging enforcement are therefore limited and can be a high test to overcome.
Next week we will look at issues surrounding final determination in more detail. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.
Should you require any assistance with adjudication, we have a large and experienced construction team who regularly deal with adjudications and we would be happy to discuss the process with you.
