Can an adjudicator's draft or provisional decision constitute the final decision?
A document described and communicated as provisional will not ordinarily be the adjudicator's final decision. The court examines the document, the communication and the adjudicator's objectively apparent intention rather than relying on the filename alone.
A draft circulated for comment is ordinarily provisional and does not satisfy the obligation to issue the final decision
If the adjudicator invites submissions before reaching a concluded result, the document is unlikely to be final. The parties should examine its title, wording, reservations, invitation to comment, stated next step and method of delivery. A later document may be the operative decision, but its validity cannot be assumed if it was issued after the agreed or prescribed deadline. The effect of lateness depends on the applicable wording, any agreed extension, the parties' conduct and the governing authority. A party should reserve its position promptly rather than treating the draft as an enforceable award.
| Issue | Position |
|---|---|
| Expressly provisional views | Ordinarily not final |
| Invitation to comment | Strong indication of a draft |
| No reservation and formal delivery | May indicate finality |
| Later formal decision | Likely operative document |
| Later decision out of time | Requires separate validity analysis |
Finality is objective
Ask what a reasonable recipient would understand from the document and the circumstances of delivery. The adjudicator's uncommunicated intention cannot convert an expressly provisional paper into the final decision.
Indicators of a provisional document
| Indicator | Evidence of provisional status |
|---|---|
| Title | Draft, preliminary views or provisional findings |
| Reservations | Express statement that conclusions may change |
| Invitation | Request for comments or further submissions |
| Next step | Promise of a later signed or final document |
| Relief | Absence of a concluded order or allocation |
| Delivery | Informal circulation rather than the prescribed method |
Indicators of finality
A signed document that determines the referred issues, states the relief, allocates responsibility for fees and is delivered as the decision is more likely to be final. No single feature is conclusive; the document must be read as a whole.
Simons Construction
A document issued by the deadline and circulated for comment was not intended as the final decision. A later decision was treated as operative on the recorded facts.
Do not generalise the lateness result
The later Simons decision was enforced despite its date. That result should not be applied as a general rule that every late decision is valid. The contractual or Scheme wording, agreed extensions, issue date and parties' conduct must be examined in each case.
Ritchie Brothers
This later authority supports a more restrictive approach to late decisions.
Lanes Group
The Court of Appeal held that circulating a preliminary view before a response had been received did not give rise to apparent bias. The document was expressly provisional, and there is nothing objectionable in a decision-maker setting out a preliminary view for the parties to address.
Natural justice is different
An adjudicator must give the parties a fair opportunity to address material points. That duty does not ordinarily require circulation of a draft decision. If a new decisive point emerges, the adjudicator should invite focused submissions without disclosing a provisional outcome unnecessarily.
Party response to a draft
State promptly that the document is understood to be provisional, reserve all jurisdiction and timing rights, and comply with any proper invitation to address a material point. Do not make submissions that assume an unagreed extension of time.
A response to provisional views should say expressly whether the party agrees to extend the time for the final decision.
Adjudicator controls
The adjudicator should manage submissions before deliberation, identify any new decisive issue and issue one unambiguous final decision by the applicable deadline. The final communication should leave no doubt about its status.
Assessment sequence
Read the title and operative wording.
Identify every reservation and invitation to comment.
Check whether relief and fees were finally determined.
Review the delivery communication.
Identify any promised later document.
Calculate the final-decision deadline.
Check agreed extensions and parties' conduct.
Reserve objections before responding or enforcing.
Authorities
| Authority | Status | What it decides |
|---|---|---|
| Simons Construction Ltd v Aardvark Developments Ltd | [2003] EWHC 2474 (TCC) | A document circulated for comment was not the final decision on the recorded facts. |
| Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd | [2005] CSIH 32 | A restrictive approach was taken to the enforceability of a late decision. |
| Lanes Group plc v Galliford Try Infrastructure Ltd | [2011] EWCA Civ 1617 | An expressly provisional preliminary view circulated for comment did not create apparent bias. |