Diamond (Gillies Ramsay) v PJW Enterprises [2002] Scotcs 340

Lady Paton, in Scotland, had to consider an adjudication concerning a professional negligence claim. PJW employed Diamond as contract administrators on a refurbishment contract in Glasgow. During the course of the works a dispute arose which resulted in the termination of Diamond's appointment. PJW employed others in Diamond's place, brought a claim for professional negligence against Diamond and then referred that claim to adjudication. The adjudicator found against Diamond who resisted paying, claiming that the adjudicator did not have the power to award damages and that an appointment as a contract administrator was not a construction contract as defined by the HGCRA. Lady Paton held that Diamond's contract administration services qualified as surveying work thereby falling within the HGCRA. By agreeing to carry out contract administration services, Diamond had entered into an agreement to do surveying work. It is interesting that although Lady Paton expressed doubts about the merits of the decision, she concluded that she could not interfere with that decision. Lady Paton recognised the potential difficulties caused by the short time limits imposed by adjudication but stated: "There is nothing in the 1996 Act...in precedent or principle, to suggest that an adjudicator seeking to resolve a dispute...is not entitled to reach conclusions about the manner in which a professional person has carried out his or her duties in the course of the construction contract - and that includes conclusions as to whether there might have been any professional negligence. ...While therefore, it may on one view seem startling that a professional person acting as an adjudicator should be invited to rule within 28 days on the important and often difficult and delicate question as to whether a fellow professional has failed in his or her duty to such extent that there has been professional negligence, yet it seems that a proper construction of the statutory language...permits this very result - although importantly, a "provisional interim" result." Thus Lady Paton has provided judicial confirmation that there is nothing to stop a claim of professional negligence being made in an adjudication.

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