Barr Ltd v Law Mining Ltd [2001] ScotsCS 152

This summary was provided by CMS Cameron McKenna LLP.

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The Court will enforce part only of an adjudicator's decision where it finds that another part of that decision has been made in excess of the adjudicator's jurisdiction and that part is easily severable from the part made with jurisdiction.

Lord MacFadyen, Outer House, Court of Session

15 June 2001

B sought to enforce by decree (judgment) two adjudicators' awards made in its favour. The two adjudications arose from related construction contracts for road improvement works on the A76 and for the construction of a new access road.

In both adjudications, the adjudicator decided in favour of B and B sought summary decree for payment of those awards on the basis L had no defence.

L sought to show that the first adjudicator had acted beyond his jurisdiction, submitting firstly that B had sought a decision for several disputes in the same adjudication, which was not permitted under the Scheme for Construction Contracts (Scotland) Regulations 1998. The judge held that the adjudicator did not err in finding that the whole matters referred to him constituted a single dispute.

Secondly, L contended that the adjudicator did not have jurisdiction to make an award for works completed by B after L had rescinded the contract as such works were not carried out under a "construction contract". Additionally B's referral notice did not distinguish between pre and post rescission works so the adjudicator did not have jurisdiction to consider any part of the matters referred to him. The judge found that the adjudicator had regarded the question of rescission/ no rescission as unresolved, declined to resolve it and regarded it as capable of resolution only by the court at a future date. It was held that the adjudicator would only have jurisdiction if he had first decided there had been no rescission (which he did not do). He therefore did not have jurisdiction to determine the part of the dispute affected by that issue and any sum which resulted from this part could not be enforced.

Thirdly, L argued that the adjudicator had exceeded his jurisdiction by answering a question that was not asked of him, namely by finding that the contractual certification and payment mechanism did not comply with s 110 of the 1996 Act and therefore did not apply. The judge was not persuaded that the adjudicator had committed a jurisdictional error: he had been asked to find the amount due in respect of a particular application and this issue fell within his consideration of that question.

The judge therefore granted summary decree for the parts of the adjudicator's decision not affected by the second defence raised by L.

With regard to the second adjudication, excess of jurisdiction was pleaded on similar issues, namely the several disputes, rescission and certification issues. The judge concluded that for this adjudication, none of the issues raised by L gave them a sound defence to the enforcement of the adjudicator's award therefore summary decree was granted in favour of B.

The Court will enforce part only of an adjudicator's decision where it finds that another part of that decision has been made in excess of the adjudicator's jurisdiction and that part is easily severable from the part made with jurisdiction.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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