NETWORK RAIL INFRASTRUCTURE LTD AGAINST (FIRST) FERN TRUSTEE 1 LTD & Ors [2021] ScotCS CSOH_107 (21 October 2021)

NETWORK RAIL INFRASTRUCTURE LTD AGAINST (FIRST) FERN TRUSTEE 1 LTD & Ors [2021] ScotCS CSOH_107 (21 October 2021)

Clause 3.27 of the Remedial Works Agreement is unambiguous and vests the decision to accept completion solely in Fern, after liaising with tenants, but does not oblige Fern to include tenants' concerns unless Fern considers them valid. Tenants have no contractual entitlement to insist upon inclusion of their concerns in the Owner's Completion Notice or to challenge Fern's decision regarding completion. The adjudicator's determination of completion is binding unless and until determined otherwise by the court, but no basis exists for declarator that completion has not occurred.

Citation
[2021] ScotCS CSOH_107
Parties
Pursuer: Network Rail Infrastructure Limited; Pursuer: The Scottish Ministers; Defender: Fern Trustee 1 Limited; Defender: Fern Trustee 2 Limited; Defender: McLaughlin & Harvey Limited; Defender: Scott Wilson Railways Limited
Jurisdiction
Scotland
Judgment Date
21 October 2021
Procedural Posture
Commercial Action / Judgment After Debate
Outcome
Actions dismissed
Legal Topics
Interpretation of Multipartite Agreements, Remedial Works Agreement, Settlement Agreements, Adjudication, Title and Interest to Sue
Contract Law Construction Law Interpretation of Multipartite Agreements Remedial Works Agreement Settlement Agreements Adjudication Title and Interest to Sue

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Parties

Network Rail Infrastructure Limited

Pursuer

The Scottish Ministers

Pursuer

Fern Trustee 1 Limited

Defender

Fern Trustee 2 Limited

Defender

McLaughlin & Harvey Limited

Defender

Scott Wilson Railways Limited

Defender

Procedural Posture

Commercial Action / Judgment After Debate

Legal Issues

  1. 1 Whether tenants have contractual entitlement to insist upon inclusion of their concerns in Owner's Completion Notice under Remedial Works Agreement
  2. 2 Whether tenants can challenge Owner's decision regarding satisfactory completion of remedial works
  3. 3 Jurisdiction of court versus adjudicator in determining completion date

Ratio Decidendi

Clause 3.27 of the Remedial Works Agreement is unambiguous and vests the decision to accept completion solely in Fern, after liaising with tenants, but does not oblige Fern to include tenants' concerns unless Fern considers them valid. Tenants have no contractual entitlement to insist upon inclusion of their concerns in the Owner's Completion Notice or to challenge Fern's decision regarding completion. The adjudicator's determination of completion is binding unless and until determined otherwise by the court, but no basis exists for declarator that completion has not occurred.

Court Disposition

Actions dismissed

Orders

  • Sustain pleas in law for Fern and contractor; repel pleas for Network Rail and Scottish Ministers; dismiss both actions
  • Questions regarding expenses reserved