Civil Engineering Reference
In-Depth Information
calculations, and not a mistake in his decision to deal with a dispute that was outside
his jurisdiction.
he court decided that the adjudicator plainly made a mistake. However, he did not
purport to determine that Dahl-Jensen were entitled to the release of the retention.
Rather,hismistakewasanarithmeticalonewithwhichthecourtcouldnotinterfere.
Effectively, the adjudicator had answered the right question, but in the wrong way.
The judge concluded:
[T]he court should bear in mind that the speedy nature of the adjudication pro-
cess means that mistakes will inevitably occur, and, in my view, it should guard
against characterising a mistaken answer to an issue that lies within the scope of
the reference as an excess of jurisdiction.
By comparison, in
Bloor Construction UK Ltd
v.
Bowmer Kirkland (London) Ltd
(2000), a mistake had been made by the adjudicator in his decision which was dated
9February,andsenttothepartieson11February.Hehadnottakenintoaccount
in his calculations payments made to date by the main contractor. The adjudicator
then realized his mistake, wrote to the parties on 11 February along with a corrected
decision, still dated 9 February.
Bloor sought summary judgment. His Honour Judge Toulmin reached a practical
decision that, in the absence of a specific agreement to the contrary, there will be an
implied term that an adjudicator can correct, clarify or remove an error or accidental
omission, provided that it is done within a reasonable time, and causes no prejudice
to the other party. However, that decision appears to proceed at least in part, by way
of analogy with the power given to an arbitrator in England and Wales to correct
arbitration awards, see section 57 of the Arbitration Act 1996, which does not apply
to Scotland.
While an arithmetical error in an adjudicator's award has been capable of being
corrected under this slip rule, it can only apply in circumstances where the adjudi-
cator accepts that there is an obvious error which he is prepared to correct. It must
also be a genuine slip that failed to give effect to the adjudicator's first thoughts. An
adjudicator who goes further than a mere correction by recalculating the sums due
using a different method or by wholly reconsidering and redrafting substantive parts
of his decision will leave parties with an unenforceable decision. See
CIB Properties
Ltd
v.
Birse Construction Ltd
(2004);
YCMS Ltd (t/a Young Construction Management
Services)
v.
Grabiner & Anor
(2009);
O'Donnell Developments Ltd
v.
Build Ability Ltd
(2009); and
Rok Building Ltd
v.
Celtic Composting Systems Ltd (No. 2)
(2010).
A degree of clarity has been introduced to this area by amendments to the 1996 Act.
The 2009 Act added section 108(3A), which requires construction contracts now to
reflect the English common law 'slip' rule, allowing adjudicators to correct clerical or
typographical errors in their decisions arising by accident or omission. A new para-
graph 22A has been inserted into the Scheme to a similar effect, allowing adjudicators,
on their own initiative or on the request of a party, to correct clerical or typographi-
cal errors within their decisions. The Scheme additionally requires, however, that the
