Dickie & Moore Limited Against Ronald James Mcleish, Diane Mcleish And Catriona Watt
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2019] CSOH 87 |
| Docket Number | CA65/19 |
| Date | 08 November 2019 |
| Court | Court of Session |
| Published date | 08 November 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 87
CA65/19
OPINION (NO 2) OF LORD DOHERTY
In the cause
DICKIE & MOORE LIMITED
Pursuer
against
RONALD JAMES McLEISH, MRS DIANE McLEISH AND CATRIONA WATT
as Trustees of The Lauren McLeish Discretionary Trust
Defenders
Pursuer: Turner; Macfarlane Law Limited
Defenders: MacColl QC; Anderson Strathern LLP
8 November 2019
Introduction
[1] The background to this dispute is set out in my opinion of 12 September 2019
([2019] CSOH 71). In that opinion I held that part of the claim which the pursuer made in a
notice of adjudication - namely the claim for an extension of time and loss and expense - had
not crystallised before the service of the notice. I found that the adjudicator did not have
jurisdiction to determine that aspect of the claim.
[2] The pursuer now maintains that since the adjudicator had jurisdiction to decide the
remainder of the claim, part of his decision may be enforced. The defenders argue that the
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decision was a unity and that therefore none of it may be enforced. Both parties lodged
supplementary written submissions which developed their arguments for and against
severance, and I heard oral submissions on 27 September 2019.
Adjudication of construction disputes - the relevant statutory context
[3] One of the recommendations of the Latham Report (‘Constructing the Team’, Final
Report of the Joint Review of Procurement and Contractual Arrangements in the United
Kingdom Construction Industry, July 1994) was that legislation should provide for the
speedy resolution of construction contract disputes by, inter alia, adjudication. This
recommendation resulted in Part II of the Housing Grants, Construction and Regeneration
Act 1996 (“the 1996 Act”). Every written construction contract has to contain the right to
refer disputes to adjudication under a procedure which complies with section 108. If the
contract contains provisions for such a right, those provisions apply. If and to the extent
that it does not, the adjudication provisions of the Scheme for Construction Contracts apply.
Section 114 provides for the minister to make a Scheme by regulations. Where any
provisions of the Scheme apply by virtue of Part II of the Act in default of contractual
provisions agreed by the parties, they have effect as implied terms of the contract (s114(4)).
The regulations for Scotland are the Scheme for Construction Contracts (Scotland)
Regulations 1998 (SI 1998/687)(as amended by The Scheme for Construction Contracts
(Scotland) Amendment Regulations 2011 (SSI 2011/371). The equivalent provisions for
England and Wales are the Scheme for Construction Contracts (England and Wales)
Regulations 1998 (SI 1998/649)(as amended by the Scheme for Construction Contracts
(England and Wales) Amendment Regulations 2011 (SI 1998/2333). In each case the
adjudication provisions of the Scheme are set out in Part I of the Schedule to the regulations.
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The adjudication provisions in the contract
[4] The form of the building contract between the parties was the Standard Building
Contract with Quantities for use in Scotland (2011 Edition). The parties incorporated the
adjudication provisions of the Scheme as terms of the contract. Article 7 provides:
“Article 7: Adjudication
If any dispute or difference arises under this Contract, either Party may refer it to
adjudication in accordance with clause 9.2 of the Conditions.”
Clause 9.2 of the conditions provides:
“Adjudication
9.2 If a dispute or difference arises under this Contract which either Party wishes
to refer to adjudication, the Scheme shall apply...”
In terms of clause 1.1 of the conditions “the Scheme” is defined as:
“Part 1 of the Schedule to The Scheme for Construction Contracts (Scotland)
Regulations 1998 (as amended by The Scheme for Construction Contracts (Scotland)
Amendment Regulations 2011).”
Part 1 of the Schedule provides:
“Part I ADJUDICATION
Notice of intention to seek adjudication
1.—
(1) Any party to a construction contract (“the referring party”) may give written
notice (“the notice of adjudication”) of his intention to refer any dispute arising
under the contract to adjudication.
(2) The notice of adjudication shall be given to every other party to the contract.
(3) The notice of adjudication shall set out briefly–
(a) the nature and a brief description of the dispute and of the parties
involved;
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