THE EDINBURGH SCHOOLS PARTNERSHIP LIMITED v GALLIFORD TRY CONSTRUCTION (UK) LIMITED [2017] ScotCS CSOH_133 (24 October 2017)

THE EDINBURGH SCHOOLS PARTNERSHIP LIMITED v GALLIFORD TRY CONSTRUCTION (UK) LIMITED [2017] ScotCS CSOH_133 (24 October 2017)

An assignation in security does not wholly divest the cedent of title to sue; the pursuer, having a present financial and reversionary interest and with the assignee's consent, retains title to pursue claims under the contract. The procedural requirements for adjudication were met by reference to the adjudication notice, and there was no apparent bias or material breach of natural justice by the adjudicator.

Citation
[2017] ScotCS CSOH_133
Parties
Defender's Advocate: Mr Ellis; Pursuer's Advocate: Mr Moynihan
Jurisdiction
Scotland
Judgment Date
24 October 2017
Procedural Posture
Commercial Contract Dispute / Judgment After Hearing on Preliminary Issues
Outcome
Defender's preliminary pleas repelled; pursuer has title to sue; decree granted in pursuer's favour.
Legal Topics
Assignation in Security, Title to Sue, Adjudication Procedure, Natural Justice, Jurisdiction of Adjudicator
Contract Law Security Rights Civil Procedure Assignation in Security Title to Sue Adjudication Procedure Natural Justice Jurisdiction of Adjudicator

Case Brief

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Parties

Mr Ellis

Defender's Advocate

Mr Moynihan

Pursuer's Advocate

Procedural Posture

Commercial Contract Dispute / Judgment After Hearing on Preliminary Issues

Legal Issues

  1. 1 Whether an assignation in security divests the cedent of title to sue under the contract
  2. 2 Whether the pursuer complied with procedural requirements for adjudication under the D&B contract
  3. 3 Whether there was apparent bias or breach of natural justice by the adjudicator

Ratio Decidendi

An assignation in security does not wholly divest the cedent of title to sue; the pursuer, having a present financial and reversionary interest and with the assignee's consent, retains title to pursue claims under the contract. The procedural requirements for adjudication were met by reference to the adjudication notice, and there was no apparent bias or material breach of natural justice by the adjudicator.

Court Disposition

Defender's preliminary pleas repelled; pursuer has title to sue; decree granted in pursuer's favour.

Orders

  • Repel defender's pleas on title to sue and procedural invalidity.
  • Grant decree de plano in terms of the first and second conclusions.