D McLAUGHLIN & SONS LTD AGAINST EAST AYRSHIRE COUNCIL [2020] ScotCS CSOH_109 (30 December 2020)

D McLAUGHLIN & SONS LTD AGAINST EAST AYRSHIRE COUNCIL [2020] ScotCS CSOH_109 (30 December 2020)

The adjudicator's decision is enforceable unless challenged on jurisdiction or natural justice grounds; errors of law or fact do not permit challenge. The Final Certificate was not conclusive evidence in the adjudication because it was timeously challenged in the sheriff court action, removing its conclusivity for both the litigation and adjudication. The defender cannot recover adjudicator's fees as such fees are incidental and not subject to restitution. The court does not recognise the English 'exception' for manifest errors as a defence to enforcement in this case.

Citation
[2020] ScotCS CSOH_109
Parties
Pursuer: D McLaughlin & Sons Limited; Defender: East Ayrshire Council
Jurisdiction
Scotland
Judgment Date
30 December 2020
Procedural Posture
Commercial Enforcement Action / Judgment on Enforcement and Counterclaim
Outcome
Adjudicator's decision enforced; defender's counterclaim dismissed
Legal Topics
Adjudication Enforcement, Final Certificate Conclusivity, Interim Payment Notices, Counterclaims, Restitution of Adjudicator's Fees
Construction Law Contract Law Civil Procedure Adjudication Enforcement Final Certificate Conclusivity Interim Payment Notices Counterclaims Restitution of Adjudicator's Fees

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Parties

D McLaughlin & Sons Limited

Pursuer

East Ayrshire Council

Defender

Procedural Posture

Commercial Enforcement Action / Judgment on Enforcement and Counterclaim

Legal Issues

  1. 1 Whether errors of law or fact by an adjudicator permit challenge to enforcement of adjudicator's decision
  2. 2 Whether the Final Certificate is conclusive evidence precluding enforcement of the adjudicator's award
  3. 3 Whether the defender can recover adjudicator's fees via counterclaim

Ratio Decidendi

The adjudicator's decision is enforceable unless challenged on jurisdiction or natural justice grounds; errors of law or fact do not permit challenge. The Final Certificate was not conclusive evidence in the adjudication because it was timeously challenged in the sheriff court action, removing its conclusivity for both the litigation and adjudication. The defender cannot recover adjudicator's fees as such fees are incidental and not subject to restitution. The court does not recognise the English 'exception' for manifest errors as a defence to enforcement in this case.

Court Disposition

Adjudicator's decision enforced; defender's counterclaim dismissed

Orders

  • Defender ordered to pay pursuer £427,578.75 plus VAT (£513,094.50 total)
  • Defender ordered to pay interest of £78,361.18 up to date of decision, increasing daily by £61.46 until payment