SL Timber Systems Ltd v Carillon Construction Ltd [2001] ScotCS 167 (27 June 2001)

SL Timber Systems Ltd v Carillon Construction Ltd [2001] ScotCS 167 (27 June 2001)

The adjudicator erred in law by conflating the requirements of sections 110 and 111 of the 1996 Act and by holding that failure to serve a timeous notice of intention to withhold payment precluded any dispute as to whether the sums claimed were contractually due. However, this error was within the scope of his jurisdiction and did not render his decision unenforceable. The defenders' averments of the pursuers' insolvency do not constitute a relevant defence to enforcement, as the 1996 Act and Scheme do not provide for such an exception absent liquidation.

Citation
[2001] ScotCS 167
Parties
Pursuer: S L Timber Systems Limited; Defender: Carillon Construction Limited
Jurisdiction
Scotland
Judgment Date
27 June 2001
Procedural Posture
Commercial Enforcement of Adjudicator's Award / Outer House, Court of Session – Opinion Following Preliminary Hearing and Debate
Outcome
Decree granted in favour of pursuers for principal sums with interest from 17 May 2001; defenders' relevant defences repelled; question of expenses reserved.
Legal Topics
Adjudication Enforcement, Housing Grants, Construction and Regeneration Act 1996, Scheme for Construction Contracts (scotland) Regulations 1998, Jurisdiction of Adjudicator, Withholding Notices, Insolvency and Enforcement
Construction Law Contract Law Civil Procedure Adjudication Enforcement Housing Grants, Construction and Regeneration Act 1996 Scheme for Construction Contracts (scotland) Regulations 1998 Jurisdiction of Adjudicator Withholding Notices +1 more

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Parties

S L Timber Systems Limited

Pursuer

Carillon Construction Limited

Defender

Procedural Posture

Commercial Enforcement of Adjudicator's Award / Outer House, Court of Session – Opinion Following Preliminary Hearing and Debate

Legal Issues

  1. 1 Whether the adjudicator's error regarding sections 110 and 111 of the 1996 Act rendered his decision unenforceable for want of jurisdiction
  2. 2 Whether the alleged insolvency of the pursuers is a relevant defence to enforcement of the adjudicator's award

Ratio Decidendi

The adjudicator erred in law by conflating the requirements of sections 110 and 111 of the 1996 Act and by holding that failure to serve a timeous notice of intention to withhold payment precluded any dispute as to whether the sums claimed were contractually due. However, this error was within the scope of his jurisdiction and did not render his decision unenforceable. The defenders' averments of the pursuers' insolvency do not constitute a relevant defence to enforcement, as the 1996 Act and Scheme do not provide for such an exception absent liquidation.

Court Disposition

Decree granted in favour of pursuers for principal sums with interest from 17 May 2001; defenders' relevant defences repelled; question of expenses reserved.

Orders

  • Sustain pursuers' second and third pleas-in-law; exclude from probation averments in support of defenders' fourth and sixth pleas-in-law.
  • Repel defenders' fifth plea-in-law of consent.