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I have been talking to solicitor Lindy Patterson at the Edinburgh office of Dundas & Wilson. She spoke to me about the recent adjudication case of Costain vs Strathclyde Builders, and it contains real gems of guidance for adjudicators about fair play.

The judge in the case was Lord Drummond Young. Lindy reminds me that it was he who once said: "In a well regulated legal universe, black holes should not exist." I am reliably informed that he did not say: "Laws are like sausages. It is better not to see them being made."

Strathclyde, the employer in this spat, got upset with the adjudicator, no doubt because he decided that the full amount of liquidated and ascertained damages deducted from Costain's account should be repaid to Costain in full, together with interest and costs. Ouch. That decision is, of course, binding in Scotland, unless – and here's the rub – the adjudicator has been unfair. The posh way of putting that is to say "vitiated by a breach of the principles of natural justice". But wait a minute. Lord Drummond Young has not actually said the adjudicator must be shown to have been unfair. No, he says it is enough to set the adjudicator's decision aside if the upset party can demonstrate the mere possibility of unfairness.

What happened in the adjudication was this. At the very last knockings, the adjudicator asked for a few extra days "to discuss one point in particular with his legal adviser". "Okay," said both sides. A few days later, out came his decision. Wait a minute, said Strathclyde: you haven't told either party what you discussed with the legal adviser. Strathclyde kicked up a fuss, saying that the adjudicator's failure to invite comment or submissions thereon prior to arriving at this decision was a breach of the principles of natural justice. The decision might have been influenced by advice that was erroneous, incomplete or irrelevant.

That can't be right, said Costain. There was nothing in the adjudicator's decisions or reasoning to suggest he had attributed any significance to the discussions with the legal adviser. Nobody could point to any part of the adjudicator's reasoning that had not been argued by the parties. And if there was a breach of natural justice, there was no hint of any substantial and relevant breach. So please ignore Strathclyde, said Costain.

Adjudication is not a court of law but there are nevertheless certain standards of fair play. If not, adjudication will soon fall into public disrepute

The judge now considered the relationship of the courts to an adjudicator's decisions. "I am of the opinion that an adjudicator must be regarded as a type of arbiter." He decides disputes and his decision is binding. It contains the essential features of arbitration. English judges are taking that line, too. So "the well established rules that govern the judicial control of arbiters apply to adjudicators". They must be impartial and give each party a fair opportunity to present its case. The judge rejected the notion that the temporary nature of adjudication altered the concept of fairness. He rejected, too, the idea that the power of the adjudicator "to take the initiative in ascertaining the facts and the law" meant anything more than obtaining further information as was necessary for deciding the dispute. And, in this respect, he rejected any suggestion that adjudication is an inquisitorial system: it is adversarial. On top of all this, he has seen that the industry is investing in adjudication as the solution to the dispute so it had to be seen to be scrupulously fair.

Adjudication is not a court of law but there are nevertheless certain standards of fair play. If not, adjudication will soon fall into public disrepute. So the test for fairness was not to examine the merits of the case, but to look at whether the adjudicator is seen to have fairly and equally dealt with the parties. "Was there an opportunity afforded for injustice to be done?"

If yes, the decision can't stand.