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Homer Burgess Ltd v Chirex (Annan) Ltd [2000] BLR 124 Outer Court
This summary was provided by CMS Cameron McKenna LLP.
For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes
Where parts of an award are valid, and parts made without jurisdiction, the Court may reduce the award and ask the adjudicator to decide which parts of the award were within jurisdiction.
Lord MacFadyen, Outer House, Court of Session
18 November 1999
In his previous decision on the construction of the word "plant", Lord MacFadyen found that the adjudicator's decision was, to a substantial extent, beyond his jurisdiction, since much of H's contract was not a "construction contract" within the meaning of the Act.
C had not maintained that the whole of the parties' dispute fell outside the adjudicator's jurisdiction, so the Court had to decide what order to make in relation to the small area that was within his jurisdiction. The Court had two options:
- reduce the adjudicator's decision in toto, i.e., to reduce it completely to nil; or
- decide which parts of the decision were intra vires, and allow H to enforce that part.
The Court decided that either option was open to it, and that in making a choice, it should consider the practicalities of which method would enable H to recover those valid parts of the award most quickly. If the Court were to decide which parts of the decision were intra vires, it would necessitate another longer hearing to decide this. The adjudicator himself was best placed to answer that question.
Therefore, the Court decided to reduce the adjudicator's decision and remit the matter to the adjudicator to re-examine the award. The Court noted that the parties could consent to the adjudicator making his decision within a longer period than 28 days, and there would be nothing to stop H making a fresh referral to adjudication if the existing referral could not be resuscitated.
Where parts of an award are valid, and parts made without jurisdiction, the Court may reduce the award and ask the adjudicator to decide which parts of the award were within jurisdiction.
This summary was provided by CMS Cameron McKenna LLP.
For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes
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