In the 2010 case of WH Malcolm v AMEC [2010] CSOH152, the Scottish Outer House Court of Session returned to an often-raised subject, namely the scope of an adjudicator's decision. This involved two adjudications in relation to the same contract. In the first, the adjudicator had found that a particular method of measurement, the "Standard Method of Measurement 7" (SMM7) was to be adopted. Subsequently, in the second adjudication, the claimants had sought an injunction to prevent the second adjudicator considering any submissions to the effect that SMM7 was the correct method of measurement and prohibiting the second adjudicator taking a decision contrary to that of the first adjudicator.The adjudication was conducted under the TeCSA Rules which provide that no party shall make an application to the court in relation to the conduct of the adjudication until the adjudicator has made his decision and it has been complied with. The court held that this alone barred the claimant's claim. The issue of whether SMM7 was to be used was clearly a matter for the adjudication and should not be questioned by the court unless, as the TeCSA Rules provided, bad faith applied. Even then, the court concluded that the central issue in dispute in the first adjudication was not whether the subcontract provided for SMM7. This issue had not been raised in the Notice of Referral and whilst it was part of the first adjudicator's reasoning it was not part of her decision. The injunction was refused on this basis and the second adjudication continued.
The decision illustrates that a Notice of Referral will define the scope of an adjudication and other matters will not become part of the referred dispute purely by virtue of having been raised in a response.