Field Systems Designs Limited Against Mw High Tech Projects Uk Limited
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2020] CSOH 17 |
| Docket Number | CA153/19 |
| Date | 05 February 2020 |
| Court | Court of Session |
| Published date | 11 February 2020 |
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 17
CA153/19
OPINION OF LORD CLARK
In the cause
FIELD SYSTEMS DESIGNS LIMITED
Pursuer
against
MW HIGH TECH PROJECTS UK LIMITED
Defender
Pursuer: Barne QC; CMS Cameron McKenna Nabarro Olswang LLP
Defender: McKenzie; Clyde & Co (Scotland) LLP
11 February 2020
Introduction
[1] On 4 October 2019, following an adjudication arising from a dispute between the
pursuer and the defender, the adjudicator made an award in the pursuer’s favour. In this
action, the pursuer seeks enforcement of that decision. The defender argues that it should
not be enforced and seeks reduction of the decision. The case called before me for a debate
and also on the pursuer’s motion for summary decree.
2
Background
[2] On about 27 November 2015, the parties entered into a contract for the design and
construction of electrical, control and instrumentation works at a waste plant. Various
differences and disputes arose and on about 22 January 2018 the parties entered into a
further agreement (“the Supplemental Agreement”). As part of the Supplemental
Agreement the parties agreed to value the works completed as at 3 December 2017 at
£9,600,000. They also agreed that any remaining works carried out after that date would be
valued on the basis of schedule 19 to the initial contract, as varied by the Supplemental
Agreement. Schedule 19 set out, for present purposes, two bases on which the remaining
elements of the works were to be valued. The first is the schedule of Rates listed in
clause 19.5, to be applied using Table 19.2. This basis for valuation would apply to payment
for all staff and labour directly and indirectly employed by the pursuer. The second is a
“cost plus” basis set out in clause 19.6 which involves a 7.5% uplift applied to substantiated
actual costs, in terms of Table 19.3. This would apply to supplies and services from a third
party, including bought-in plant, materials and labour. The contrast is therefore between
agreed hourly rates (Table 19.2) and actual costs plus an uplift (Table 19.3).
[3] On about 28 May 2019 the pursuer submitted an interim request for payment in
respect of the works undertaken up to and including that date. The gross value of the works
identified in that request for payment was £15,083,510.21. The pursuer’s interim request for
payment included claims in respect of work carried out by Cepha Controls Limited
(“Cepha”) and Anord Control Systems Limited (“Anord”). In all requests for payment after
the Supplementary Agreement was reached, the pursuer had applied for and the defender
had certified payment for the Cepha and Anord work on the basis of the agreed hourly rates
(Table 19.2) rather than the cost plus approach (Table 19.3). The interim request for payment
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