D McLAUGHLIN & SONS LTD AGAINST EAST AYRSHIRE COUNCIL [2021] ScotCS CSOH_122 (07 December 2021)

D McLAUGHLIN & SONS LTD AGAINST EAST AYRSHIRE COUNCIL [2021] ScotCS CSOH_122 (07 December 2021)

The defender's counterclaim fails because clause 1.9.4 of the contract bars proceedings challenging the adjudicator's decision more than 28 days after its issue, and the Final Certificate is not conclusive evidence for interim purposes when its accuracy is under challenge in extant proceedings. The Interim Payment Notice issue is also barred by clause 1.9.4. Recovery of interest would only be allowed if the counterclaim succeeded, which it did not.

Citation
[2021] ScotCS CSOH_122
Parties
Pursuer: D McLaughlin & Sons Limited; Defender: East Ayrshire Council
Jurisdiction
Scotland
Judgment Date
07 December 2021
Procedural Posture
Commercial Action (counterclaim) / Judgment on Counterclaim Following Enforcement of Adjudicator's Award
Outcome
Counterclaim dismissed
Legal Topics
Interim Payments, Final Certificate, Adjudication Enforcement, Interest Repayment, Conclusive Evidence Clauses
Construction Law Contract Law Interim Payments Final Certificate Adjudication Enforcement Interest Repayment Conclusive Evidence Clauses

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Parties

D McLaughlin & Sons Limited

Pursuer

East Ayrshire Council

Defender

Procedural Posture

Commercial Action (counterclaim) / Judgment on Counterclaim Following Enforcement of Adjudicator's Award

Legal Issues

  1. 1 Whether the Final Certificate is conclusive evidence for the purposes of the defender's counterclaim
  2. 2 Validity of the Interim Payment Notice
  3. 3 Entitlement to repayment of interest following enforcement of adjudicator's award

Ratio Decidendi

The defender's counterclaim fails because clause 1.9.4 of the contract bars proceedings challenging the adjudicator's decision more than 28 days after its issue, and the Final Certificate is not conclusive evidence for interim purposes when its accuracy is under challenge in extant proceedings. The Interim Payment Notice issue is also barred by clause 1.9.4. Recovery of interest would only be allowed if the counterclaim succeeded, which it did not.

Court Disposition

Counterclaim dismissed

Orders

  • Pleas-in-law for defender repelled
  • Third plea-in-law for pursuer sustained