DICKIE & MOORE LTD AGAINST RONALD JAMES McLEISH AND OTHERS [2020] ScotCS CSIH_38 (30 June 2020)

DICKIE & MOORE LTD AGAINST RONALD JAMES McLEISH AND OTHERS [2020] ScotCS CSIH_38 (30 June 2020)

The court held that the valid parts of an adjudicator’s decision may be severed and enforced if they are not tainted by the invalid parts, even in a single dispute adjudication. The test is whether a core nucleus of the decision can be safely enforced. The commercial judge was correct to enforce the valid parts of the award, as the claims for measured work and additional works were independent of the extension of time and loss and expense claims, which had not crystallized.

Citation
[2020] ScotCS CSIH_38
Parties
Pursuer and Respondent: Dickie & Moore Limited; Defenders and Reclaimers: Ronald James McLeish, Mrs Diane McLeish and Catriona Watt as Trustees of the Lauren McLeish Discretionary Trust
Jurisdiction
Scotland
Judgment Date
30 June 2020
Procedural Posture
Commercial Enforcement of Adjudicator's Award (construction Contract) / Appeal (reclaiming Motion) in the Inner House, Court of Session
Outcome
Reclaiming motion refused; commercial judge's decision affirmed.
Legal Topics
Adjudication Enforcement, Jurisdiction of Adjudicator, Severance of Adjudicator's Decision, Crystallization of Disputes, Natural Justice in Adjudication
Construction Law Contract Law Civil Procedure Adjudication Enforcement Jurisdiction of Adjudicator Severance of Adjudicator's Decision Crystallization of Disputes Natural Justice in Adjudication

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Parties

Dickie & Moore Limited

Pursuer and Respondent

Ronald James McLeish, Mrs Diane McLeish and Catriona Watt as Trustees of the Lauren McLeish Discretionary Trust

Defenders and Reclaimers

Procedural Posture

Commercial Enforcement of Adjudicator's Award (construction Contract) / Appeal (reclaiming Motion) in the Inner House, Court of Session

Legal Issues

  1. 1 Whether parts of an adjudicator’s decision that are within jurisdiction can be severed and enforced when other parts are ultra vires due to lack of crystallization of dispute
  2. 2 Whether the existence of a single dispute precludes severance of an adjudicator’s decision
  3. 3 Whether the commercial judge erred in enforcing only the valid parts of the adjudicator’s award

Ratio Decidendi

The court held that the valid parts of an adjudicator’s decision may be severed and enforced if they are not tainted by the invalid parts, even in a single dispute adjudication. The test is whether a core nucleus of the decision can be safely enforced. The commercial judge was correct to enforce the valid parts of the award, as the claims for measured work and additional works were independent of the extension of time and loss and expense claims, which had not crystallized.

Court Disposition

Reclaiming motion refused; commercial judge's decision affirmed.

Orders

  • The valid and severable parts of the adjudicator’s award are enforced.
  • The extension of time and associated loss and expense awards are not enforced.