I have only read his leading judgment in Gillies Ramsey Diamond vs PJW Enterprises. It was decided on 24 December 2003 in the Scottish Court of Appeal. Reading between the lines I get the feeling that the judge would like to have blown his top and thrown out the adjudication against this firm of surveyors. He didn't. He upheld the adjudicator's decision and enforced the award – and didn't like it one jot.
Before I tell you the details of the case, let me tell you about professional negligence claims. Call me old-fashioned, but I remember the days when professionals were regarded by most as the boss. They regarded themselves as the boss, regarded themselves as right and expected all and sundry to do it their way. "RIBA" stood for "Remember I'm the Bloody Architect". My first inclination even now is to stand up when the architect walks into the room. I resist, of course. So, when it comes to bashing a professional for so-called negligence, there is a sort of embarrassment.
The courts tread carefully, too. The judge at first instance in Gillies Ramsey explained that the question of whether a professional had failed in his duty to such an extent that there had been professional negligence was an "important and often difficult and delicate question". And bear in mind, too, that there is a discrete area of law that deals with professional negligence claims.
The employer booted the administrator off the job. The hob-nailed boot planted firmly in the trousers of a professional man dents more than his pride
And that's what went wrong in the Gillies Ramsey case. The Court of Appeal became suspicious that the adjudicator had simply approached this area of law on the basis of what I might call "an ordinary breach of contract".
Or rather, when reading the decision, the court couldn't fathom whether or not the adjudicator had actually addressed the correct questions for a professional negligence case. Here we are hanging out a professional to dry, and all the time wondering if there was a fair examination of his wrongs. The wrong was that even if the tests for professional negligence had been put to the adjudicator, did he understand them – and if so, did he apply them to the facts?
What had happened on the job itself was that the employer had faced several adjudications from the contractors. Five, I think. That caused it to fork out cash. So he did what has nowadays become more the norm: he turned on his professional contract administrator and booted him off the job. The hob-nailed boot planted firmly in the trousers of a professional man dents slightly more than his pride. The client then brought on an adjudicator to pursue for alleged negligence in running the project. Most litigators would expect such an accusation to run to an all-singing-all-dancing trial in court. Eyes would bulge at the idea of a summary 28-day process. And yes, come day 28, the professional got a poke in the eye from the adjudicator: he was held liable in negligence.
It came to Scotland's Court of Appeal in the face of the first instance judge expressing serious doubts about the correctness of the decision, but enforcing nevertheless. The more senior court scrutinised the award to find out what degree, skill and care had been applied when testing for evidence. The Lord Justice gained the impression that the adjudicator "had little grasp of the subject" and "had taken a naive view that a wrong decision constituted professional negligence". All this was an error of law, which the court had to however uphold.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.