The first respondent, HBG, entered into a contract for the building of a leisure complex at Kingask, St Andrews with St Andrews Bay Development Limited. The conditions of the contract were the Standard Scottish Building Contract with Contractor's Design (May 1999 Edition) with amendments. On 9 January 2003 HBG issued a Notice of Intention to Refer a Dispute to Adjudication. The second respondent was appointed as adjudicator. The referral notice was issued on 10 January 2003, and after various extensions of time the decision was required to be reached by 5 March 2003. HBG contacted the adjudicator after 5.00 pm on 5 March 2003 because they had not received a decision. A secretary employed by the adjudicator's firm stated that the adjudicator had reached a decision but did not intend to release it until her fee had been paid. At that time an invoice in respect of her fee had not been issued. By fax dated 6 March 2003, HBG stated that it would pay the whole of the adjudicator's fee in order to secure the release of the decision. The adjudicator then released her decision by fax on 7 March 2003. The reasons for her decision were released to the parties on 10 March 2003. At no time did the adjudicator seek a further extension of time beyond 5 March 2003.
St Andrews Bay Development Limited challenged the adjudicator's decision, essentially claiming that she had no power to reach her decision after 5 March 2003. They claimed that the decision issued on 7 March 2003 was therefore not valid. They argued that a decision reached but not communicated was no decision at all.

The provisions of the Standard Form of Contract stated that if an adjudicator failed to produce a decision within the time provided then the referring party could instruct another adjudicator and the original adjudicator must resign.

Reliance was placed upon Bloor Construction (UK) Limited vs Bowmer & Kirkland (London) Limited 2000 TCC 764. That case primarily concerned the rectification of those errors, but the adjudicator in that case had reached his decision on the last day provided for under the agreement but had not published it for a further two days.

Judge Toulmin said that the decision must be communicated immediately once it had been reached, and that a decision contained two elements: first, the reaching of that decision, and second the sending of that decision to the parties.

Reference

Lord Wheatley decided that the adjudicator had not reached her decision within the time limits provided for either by the Act or by the Standard Contract. While the Act is silent on the question of communication of the decision, there is a contemporaneous duty to communicate the decision to the interested parties once it has been reached. Otherwise the purpose of the legislation would be meaningless. Rendering a decision "forthwith" means immediately by fax or similar and not by first class post which might be regarded as "archaic". Further, the Adjudicator was not entitled to delay communication of the decision until her fees had been paid because nothing in the Scheme or the contract provided for that possibility. However, whilst the failure to comply with the timing was a serious matter it did not render the decision a nullity.

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Postscript

An ongoing debate has been the ability of the adjudicator to refuse to issue his or her decision until payment of the adjudicator's fee has been received. This case confirms that a decision for the purposes of the HGCRA has not been validly made until it has been reached and sent to the parties. It seems that an adjudicator cannot delay the issuing of a decision pending payment of fees, although a failure to issue the decision within 28 days will not automatically render the decision void. However, the effect of the decision could be overtaken by other events, such as the issuing of another notice after the 28 day deadline in respect of the same dispute, which might render the first decision void.