Whyte and Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd [2013] ScotCS CSOH_54 (09 April 2013)

Whyte and Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd [2013] ScotCS CSOH_54 (09 April 2013)

The adjudicator failed to address a key line of defence that could have provided a complete answer to the claim, amounting to a breach of natural justice. Enforcement of the award would constitute an unjustified and disproportionate interference with the defenders' possessions under Article 1 Protocol 1 of the ECHR, as there was no pressing public interest or need for a speedy provisional decision. Article 6 ECHR is not engaged as the adjudicator's decision is not a final determination of civil rights. The award is not severable; the whole award is tainted by the failure to address the key defence.

Citation
[2013] ScotCS CSOH_54
Parties
Pursuer: Whyte and Mackay Ltd; Defender: Blyth & Blyth Consulting Engineers Ltd
Jurisdiction
Scotland
Judgment Date
09 April 2013
Procedural Posture
Commercial Enforcement of Adjudicator's Award / Outer House, Court of Session, Opinion on Enforcement and Reduction of Adjudicator's Award
Outcome
Adjudicator's award reduced; enforcement refused
Legal Topics
Enforcement of Adjudicator's Awards, Professional Negligence, European Convention on Human Rights (echr), Article 1 Protocol 1 (a1 P1), Article 6 ECHR, Natural Justice, Proportionality, Severability of Awards
Construction Law Contract Law Human Rights Law Enforcement of Adjudicator's Awards Professional Negligence European Convention on Human Rights (echr) Article 1 Protocol 1 (a1 P1) Article 6 ECHR +3 more

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Parties

Whyte and Mackay Ltd

Pursuer

Blyth & Blyth Consulting Engineers Ltd

Defender

Procedural Posture

Commercial Enforcement of Adjudicator's Award / Outer House, Court of Session, Opinion on Enforcement and Reduction of Adjudicator's Award

Legal Issues

  1. 1 Whether the adjudicator's award should be enforced given alleged failure to address key defence arguments
  2. 2 Whether enforcement would breach Article 1 Protocol 1 (A1P1) of the ECHR
  3. 3 Whether enforcement would breach Article 6 ECHR (right to fair trial)

Ratio Decidendi

The adjudicator failed to address a key line of defence that could have provided a complete answer to the claim, amounting to a breach of natural justice. Enforcement of the award would constitute an unjustified and disproportionate interference with the defenders' possessions under Article 1 Protocol 1 of the ECHR, as there was no pressing public interest or need for a speedy provisional decision. Article 6 ECHR is not engaged as the adjudicator's decision is not a final determination of civil rights. The award is not severable; the whole award is tainted by the failure to address the key defence.

Court Disposition

Adjudicator's award reduced; enforcement refused

Orders

  • The adjudicator's award is reduced and will not be enforced.
  • Case to be put out by order for discussion on future procedure.