Whyte And Mackay Limited V. Blyth And Blyth Consulting Engineers Ltd
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2012] CSOH 89 |
| Date | 25 May 2012 |
| Docket Number | CA43/12 |
| Published date | 25 May 2012 |
| Court | Court of Session |
| Year | 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 89 | |
| CA43/12 | OPINION OF LORD MALCOLM in the cause WHYTE AND MACKAY LIMITED Pursuers; against BLYTH & BLYTH CONSULTING ENGINEERS LIMITED Defenders: ________________ |
Pursuer: Malone, solicitor advocate: McClure Naismith LLP
Defender: Jones QC; Balfour; advocate; Simpson & Marwick
25 May 2012
[1] The pursuers have raised an action on the commercial roll seeking to enforce an adjudicator's decision requiring the defenders to pay £2.987 million to the pursuers. It is averred that in 2006 the parties entered into an agreement for the provision of design services, including structural engineering design, in respect of the pursuers' new bottling facility at Grangemouth. The defenders designed the structure of the bottling plant, including the design of the piling and foundations. The pursuers aver that the piling and foundations are defective, thereby causing a high degree of settlement. A claim in damages was intimated in early 2011. The agreement contained a provision for the determination of disputes by adjudication. On 2 March 2012 the pursuers referred the dispute to Mr Alan Cumming, an adjudicator who had been appointed by the Chartered Institute of Arbitrators. On 9 April 2012, after a site inspection and a hearing on factual and legal issues, Mr Cumming issued his decision, the sum awarded to be paid "forthwith".
[2] In the defences to the action it is averred that the court should not enforce the decision. It is said that the adjudicator did not comply with the rules of natural justice. He failed to give adequate reasons for the determination. He had no jurisdiction to adjudicate and the decision is incompatible with the defenders' rights under the European Convention on Human Rights and Fundamental Freedoms. For present purposes it is unnecessary to elaborate upon the various grounds of challenge. Reference is made to Rule 16 of the Technology and Construction Solicitors Association Adjudication Rules 2002, which has the effect that the award is binding until the dispute is finally determined by legal proceedings, by arbitration, or by agreement.
[3] The defenders have enrolled a motion asking the court to allow the lodging of a counterclaim. The counterclaim seeks reduction of the adjudicator's decision for the reasons set out in the defences. In addition it craves a declarator that the pursuers have not sustained any loss or damage as a result of any breach of contract on the part of the defenders in respect of the design and specification of the piling for the bottling facility. The averments in the counterclaim elaborate on why the defenders say that the pursuers claim is without merit. Again it is unnecessary to elaborate upon these matters. The adjudicator's award is provisional pending final resolution of the dispute. The contract was completed some years ago, and the bulk of the award relates to losses which will be sustained some years in the future. In short, the defenders are of the view that, if the award stands and is enforced, they need to take the lead in having the substance of the dispute finally resolved, hence the unusual step of seeking a declarator that the claim is without merit. All of this flows from the pursuers choosing, in the first instance at least, to proceed to adjudication, rather than to a final resolution of their claim against the defenders. No doubt the defenders are concerned that, if and when the pursuers have received payment of almost £3m, they may show little enthusiasm for proceeding to the next stage.
[4] The defenders' motion is opposed. For the pursuers Mr Malone explained that there is no objection to that part of the counterclaim relating to reduction of the award. The opposition concerns the attempt to question the merits of the claim. Reference was made to a decision of an Extra Division in Construction Centre Group Ltd v Highland Council 2003 SC 464. Mr Malone submitted that the...
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