UK Construction and Law

An adjudicator who decided time was at large had not gone off on a frolic of his own, and the award is enforced

By Staff Writer  |  1 September 2026

A groundworks subcontractor on a power network scheme won 113,767 pounds in adjudication after the adjudicator rejected the main contractor's claimed completion date. The main contractor said that finding was never argued and that natural justice required a further round of submissions. The Court of Session held the finding was the consequence of the case put to the adjudicator, not a departure from it.

A losing party in adjudication has few ways out. One that still gets run is that the adjudicator answered a question nobody asked, which the authorities describe as going off on a frolic of one's own. An opinion issued in Edinburgh on 25 August shows how narrow that route is, and how easily an argument about natural justice turns out to be an argument about who bore the burden of proof.

The subcontractor had been engaged on works the main contractor was carrying out for an electricity network operator. In the second of two adjudications the adjudicator decided the main contractor should pay 113,767 pounds, and the subcontractor came to court to enforce that award.

The contra charge that needed a date

The dispute reached the adjudicator through a payment notice of 30 November 2024 and a pay less notice of 22 January 2025. Among the deductions was a claim for costs said to flow from the subcontractor finishing late. The main contractor said the completion date had been fixed at 13 November 2024 by an email sent on 12 July 2024.

The adjudicator did not accept that the email was an instruction, and added that a binding agreement on timely completion cannot be imposed unilaterally in any event. Having seen no evidence that the subcontractor had agreed that date or any other, he concluded that time was at large. He held that no damages for delay were due, because no completion date had been agreed and because the main contractor had not shown that the subcontractor caused delay to its own operations.

The main contractor's answer to enforcement was that neither party had argued time was at large. Once the adjudicator was minded to reject 13 November 2024, it said, he should have told the parties and invited submissions on what a reasonable period would have been.

A consequence, not a reason

The court took the phrase apart. The adjudicator had been asked whether the main contractor had established a contra charge on the footing that the works were late. That required him to decide whether he accepted the completion date relied on. He did not, and the contra charge fell with it. The observation about time being at large followed from that conclusion rather than causing it, and the court called the reference something of a red herring.

The distinction matters because it identifies who had to prove what. The party advancing the contra charge carried the burden of establishing the date by which the works ought to have been completed. It ran its case on a fixed contractual date, lost on that, and had put forward no alternative case that the works were not done within a reasonable time.

I do not accept the argument for the defender that, once the adjudicator was minded to reject the arguments advanced for the defender that it was a contractual requirement that the works be carried out by 13 November 2024, he was bound to notify the parties of this and invite further submissions. No such requirement would exist for proceedings in a court and adjudication is intended to be speedier and more informal. There are tight timetables within which adjudications must be concluded which would make it impracticable to take such steps.

Lord Lake

The court found no relevant defence to the claim for the award and granted decree for it. A separate 10,000 pounds was a different matter. Payment of that sum depended on information being provided, the main contractor said documents were still missing, and the court could not resolve that disputed question of fact on the material before it. That part goes back out By Order.

What a responding party should take from it

Plead the alternative. A party claiming delay costs on a fixed date should also run the case that, if there is no fixed date, the works were not completed within a reasonable time, and should put evidence of what that period would have been. Leaving it out is not cured later by saying the adjudicator should have asked.

Read the decision for what carried it, not for a phrase lifted out of context. The adjudicator undertook no investigation of his own and made no enquiry the parties knew nothing about. He rejected the case put to him. That is the ordinary work of an adjudicator, and it is not a breach of natural justice however unwelcome the answer.