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Scotland Cases
This page shows all the Scottish cases by default, but you can filter the list by using the search tool above. You can search within the title, key terms, court name, judge's name and case notes fields by inputting a word, or words, or part of a word, or a phrase, into the search box.
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15th October 2014T Clarke (Scotland) Limited v MMAXX Underfloor Heating Limited [2014] CSIH 83
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24th July 2014Bouygues E&S Contracting UK Ltd v Vital Energi Utilities Ltd [2014] CSOH 115
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10th June 2014Charles Henshaw and Sons Ltd v Stewart and Shields Ltd [2014] CSIH 55
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2nd May 2014Miller Construction (UK) Ltd v Building Design Partnerhips Ltd [2014] ScotCS CSOH_80
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26th March 2014T Clarke (Scotland) Ltd v MMAXX Underfloor Heating Ltd [2014] ScotCS CSOH_62
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5th March 2014Charles Henshaw and Sons Ltd v Stewart and Shields Ltd [2014] ScotSC 59
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19th February 2014Charles Henshaw and Sons Ltd v Stewart and Shields Ltd CA13/13
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30th October 2013J & A Construction (Scotland) Limited v Windex Limited [2013] CSOH 170In this action the defenders resist enforcement of an adjudicator's award of £120,000 or thereby on the basis that the pursuers' last publicly available accounts show an excess of liabilities over assets. They complain that the pursuers have failed to provide details as to their current financial position........
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4th September 2013Richard Heis & Others as Joint Administrators of Connaught Partnerships Ltd v Perth & Kinross Council [2013] CSOH 149
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9th April 2013Whyte and Mackay v Blyth & Blyth Consulting Engineers [2013] CSOH 54
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28th December 2012SW Global Resourcing Limited v Morris & Spottiswood Limited [2012] CSOH 200
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25th May 2012Opinion of Lord Malcolm: Whyte and MacKay v Blyth & Blyth Consulting Engineers [2012] CSOH 89
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10th May 2012Specialist Insulation Ltd v Pro-Duct (Fife) Ltd [2012] CSOH 79The pursuer, Specialist, sought to enforce an adjudicator's decision. The defender, Pro-Duct, argued that the contract in question, a supply contract for ductwork, did not provide for adjudication. Both parties insisted that it was the other side's terms and conditions that should apply. Throughout the adjudication process Pro-Duct had insisted that the adjudicator had no jurisdiction to act however its argument before the adjudicator had assumed its terms and conditions did apply. Pro-Duct asked the court to quash the decision on the ground of lack of jurisdiction. Specialist submitted that the parties' agreement did include an agreement to refer any dispute under the contract to adjudication. It relied on a provision within a “Material Supply only Sub-contract Agreement” that accompanied Pro-Duct’s purchase order. It said that, Pro-Duct having presented a challenge...
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20th January 2012Highlands & Islands Authority Ltd v Shetland Islands Council [2012] ScotCS CSOH_12 (20 January 2012)
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18th August 2011Carillion Utility Services Limited v SP Power Systems Limited [2011] CSOH 139Under a framework agreement Carillion carried out the excavation, backfilling and reinstatement of works and installed electricity and ancillary cables for SP. Following an adjudicator's decision regarding Carillion's entitlement to payment it took action to enforce the decision. SP challenged the adjudicator's decision asserting that he had failed to comply with the rules of natural justice in the method which adopted to quantify Carillion's claim. SP claimed that the adjudicator did not adopt the method of quantification which Carillion had put forward and which SP criticised. Instead he had used his own experience of what would constitute reasonable commercial rates, made an assumption about the additional equipment used by Carillion and applied rates which he selected without giving the parties an opportunity to consider and comment on his proposed methodology and the material...
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8th April 2011Profile Projects Limited v Elmwood (Glasgow) Limited [2011] CSOH 64
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21st October 2010AMW Plumbing & Heating Ltd v Zoom Developments Ltd CA324/09
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22nd June 2010RBG Limited v SGL Carbon Fibres Ltd [2010] CSOH 77This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY (1) Where an adjudicator has acted intra vires, the courts will not intervene even if the decision is incorrect. But where an adjudicator has acted ultra vires – for example, by acting in breach of natural justice, or in failure to exercise jurisdiction – it is for the Court to decide whether his decision is vitiated as a result. (2) As regards jurisdiction, an adjudicator, while restricted to issues focused in the dispute, has nevertheless both the power and duty to determine whether or not a claim that is put forward in respect of valuation of work done is validly asserted under the contract. (3) The response to the claim for payment in this case was that no payment was due because of earlier overpayment. Even if this was not a...
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14th June 2010Atholl Developments v UBC [2010] CSOH 94This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY (1) An award of an adjudicator would not be reduced where errors alleged to have been made by him in his decision failed to show that he had exceeded his jurisdiction or was in material breach of the rules of natural justice. (2) Accordingly an award under the same contract by the same adjudicator in a second adjudication, which was based upon his decision in the first adjudication, should not be reduced on the ground that it was tainted by the first adjudication. (3) Even if the award in the first adjudication had been reduced, the award in the second adjudication would still have been enforceable since the challenge to the first award was not made until after the second award had been issued. Outer House, Court of Session: Opinion of Lord Glennie Background The...
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10th February 2010Fleming Builders v Forrest [2010] CSIH 8This action followed an adjudication and a preliminary hearing on the evidence. The Defenders claimed during the adjudication amongst other things that there was no contract and accordingly the adjudicator had no jurisdiction. The adjudicator having found the parties to the contract to be the Pursuers and Defenders made a decision in favour of the Pursuers for the Defenders to pay the Pursuers. No payment was made. A preliminary hearing on the evidence found that there was a contract and there had been no failure on the part of the adjudicator to take account of the evidence, have regard to the argument that there was no contract at all or that there had been a breach of natural justice. The Defenders reclaimed against the interlocuter that there was no contract between the Pursuers and the Defenders. The preliminary findings were upheld. The reclaiming motion was refused
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16th December 2008Curot Contracts Ltd (t/a Dimension Shop Fitting) v Castle Inns (Stirling) Ltd (t/a Castle Leisure Group) [2008] ScotCS CSOH_179
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18th September 2008Norwest Holst Ltd v Carfin Developments Ltd [2008] ScotCS CSOH_138
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19th August 2008CSC Braehead Leisure Ltd v Laing O'Rourke Scotland Ltd [2008] ScotCS CSOH_119
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15th July 2008Fleming Builders Ltd v Forrest or Hives [2008] ScotCS CSOH_103
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17th April 2008Aedas Architects Ltd v Skanska Construction UK Ltd [2008] ScotCS CSOH_64
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30th November 2007City Inn Ltd v Shepherd Construction Ltd [2007] ScotCS CSOH_190
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17th October 2007Hadden Construction Ltd v Midway Services Limited [2007] ScotSC 58
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9th July 2007Stirling v Westminster Properties Scotland Ltd [2007] ScotCS CSOH_117
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25th April 2007Melville Dundas Ltd v George Wimpey UK Ltd (Scotland) [2007] UKHL 18This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A provision in the 1998 JCT Building Contract providing that, once a “final date for payment” of a sum had passed, the sum could retrospectively cease to be due for payment has come under scrutiny by the House of Lords. A bare majority reached the conclusion that the provision did not contravene the HGCRA. In addition, the absence of a withholding notice under s.111 did not prevent the employer from withholding payment.Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury - House of Lords BackgroundGeorge Wimpey Ltd (“Wimpey”) contracted with Melville Dundas Ltd (“the contractor”) for the construction of a housing development in Glasgow. ...
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6th February 2007Castle Inns (Stirling) Ltd t/a Castle Leisure Group v Clarks Contracts Ltd [2007] CSOH 21This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This Scottish case looked at the meaning of “dispute or difference” in the context of an adjudication. The court held that the dispute referred to an adjudicator should normally be identified by reference to the claim that had been made by one party and rejected by the other. It was the totality of the claim rather than its constituent parts that was referred to adjudication. Lord Drummond Young – Outer House, Scottish Court of Session BackgroundCastle Inns appointed Clark to carry out certain construction works on their nightclub. Certain disputes arising between the parties were referred to adjudication, including, in Adjudication No.2, a dispute referred by Castle Inns over liquidated damages due as a result...
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7th September 2006Melville Dundas Ltd v. Hotel Corporation Of Edinburgh Ltd [2006] ScotCS CSOH_136This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In this case, the court drew a distinction between settlement agreements that are independent of an underlying construction contract and settlement agreements that merely determine sums that are due under a construction contract. Withholding notices under the HGCRA need only be given in the latter case.Court of Session, Outer House, ScotlandLord Drummond YoungHotel Corporation of Edinburgh Limited (“HCEL”) are the owners of the Sheraton Hotel in Edinburgh. Melville Dundas Limited (“MDL”) are building contractors, who were employed by HCEL to carry out the internal fit out of the Sheraton Hotel. Following completion of the work by MDL, various defects emerged in the work that had been carried out. The most significant of these...
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23rd May 2006Balfour Beatty Ltd v Gilcomston North Ltd [2006] ScotCS CSOH_81
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29th December 2005Castle Inns (Stirling) Ltd v Clark Contracts Ltd [2005] ScotCS CSOH_178This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes S.108 of the HGCRA provides that an adjudicator’s decision is binding pending final determination of the dispute by legal or arbitral proceedings. In this case, the court held that liability for the adjudicator’s fees and expenses did not constitute a “dispute” for the purposes of the HGCRA and therefore any decision by the adjudicator on fees did not relate to a dispute capable of being finally determined by the court. The legal basis for repayment of any sums following final determination of a dispute would be pursuant to an implied term for the purpose of giving business efficacy to the contract.Lord Drummond Young - Outer House, Court of SessionBackground Castle appointed Clark to carry out certain works. ...
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15th December 2005Melville Dundas Ltd v George Wimpey UK Ltd [2005] ScotCS CSIH_88
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24th March 2005Ritchie Brothers Ltd v David Philp Ltd [2005] ScotCS CSIH_32lThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The 28-day time limit set out in the statutory adjudication scheme is mandatory. If the adjudicator needs to apply for an extension of time, he must do so before expiry of that deadline, otherwise his decision and any purported extension will not be valid.Lord Justice Clerk, Lord Abernethy and Lord Nimmo Smith – Inner House, Court of SessionBackground A dispute was sent to the adjudicator on 18 September 2003 under the (Scottish) statutory adjudication scheme. According to the Outer House of the Court of Session, the 28-day period in which the adjudicator was due to reach his decision started running on the date that the notice was sent, therefore the deadline for reaching a decision was 16 October. (NB – the English courts have...
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23rd March 2005Scrabster Harbour Trust v Mowlem plc T/A Mowlem Marine [2005] CSOH 44
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22nd October 2004Melville Dundas v Wimpey [2004] Outer Court of Session 22nd October
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26th August 2004CPL Contracting Limited v Cadenza Residential Limited [2005] EWHC (TCC)
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29th July 2004Scottish Coal Company Ltd, Re Petition for Suspension and Interdict [2004] ScotCS 186
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14th April 2004Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd [2004] ScotCS 94This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The issue of whether a party can retrospectively give consent to extension of the 28 day period for adjudications was considered. The Court effectively decided that retrospective consent was permitted provided neither party has dismissed the original adjudicator and appointed a new one. Consequently, where an Adjudicator's decision is issued late, it is still binding on the parties. The case also casts doubt on a previous ruling that an Adjudicator's decision is not "made" until it is actually issued to the parties. Lord Eassie, Court of Session, Scotland 14 April 2004 The key facts were as follows:- An undated Referral Notice was issued under cover of a letter dated 18 September 2003 and posted to the Adjudicator on that date by Special...
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26th February 2004Branlow Ltd v Dem-Master Demolition Ltd [2004] A904/03 Lothian
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28th January 2004Citex Professional Services Ltd v Kenmore Dev. Ltd [2004] A1195/02
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23rd January 2004Highland Council, Re Petition for Suspension of a Charge [2004] ScotCS 16
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24th December 2003Diamond (Gillies Ramsay) v PJW Enterprises Judicial [2003] ScotCS 354This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator is not a statutory decision maker and adjudication is not truly an aspect of public law. Although created and made compulsory by statute, adjudication is a contractual dispute resolution process. An intra vires error of law made by an adjudicator is therefore not open to judicial review. Court of Session (Scotland). Lord Gill, Lord Macfadyen and Lord Caplan 24 December 2003 A recent challenge to the adjudication process in Scotland has ended in failure. In this case the appeal court in Scotland upheld the decision of Lady Paton at first instance, which was noted in Adjudication Watch on 27th June 2002. The appeal court was asked to decide a further point, not raised at first instance, namely whether an...
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17th December 2003Costain Limited v Strathclyde Builders Limited [2003] ScotCS 316This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's failure to disclose the substance of legal advice given to him and to give the parties an opportunity to comment thereon amounted to a breach of the principles of natural justice. In such circumstances it does not matter that the adjudicator has treated both parties equally. It is sufficient to prevent enforcement of the decision by the Courts that the mere possibility of injustice is shown rather than actual injustice. Court of Session (Scotland). Lord Drummond-Young 17 December 2003 In this Scottish decision the question of natural justice in the context of adjudication proceedings has again come under the spotlight. Costain took Strathclyde Builders to adjudication and sought, amongst other things, an order...
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15th December 2003Prentice Island Ltd v Castle Contracting Ltd [2003] A550/01This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's entitlement to his fee under the Scheme for Construction Contracts is not dependant on the validity or otherwise of his decision. So long as an adjudicator is validly appointed and remains in post in good faith, he will be entitled to his fee even if it subsequently turns out, on examination by the Court, that he should have resigned. Sheriff Court, Scotland – Sheriff Principal Dunlop QC 15 December 2003 A dispute regarding the final account between Prentice and Castle was taken to adjudication under the (Scottish) Scheme for Construction Contracts. Castle maintained, both during the adjudication and in the subsequent Court proceedings, that the dispute was the same or substantially the same as a dispute which had...
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1st August 2003Highland Council v Construction Centre Group Ltd [2003] Scott CS 221This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes On the facts of this case, one party could not deduct the amount awarded to it by an adjudicator from the amounts that it owed the other party as awarded by a previous adjudicator that had been upheld by the Court. Lord Carloway, Outer House, Court of Session 1 August 2003 HC engaged CCG to design, construct and maintain works. The Contract incorporated conditions based on the ICE Conditions of Contract, 5th ed., 1973 (Jan. 1979 revision), with amendments. An Adjudicator awarded CCG £245k, which HC was decreed to pay at first instance. HC referred a claim for liquidated damages ('LDs') to a second Adjudicator. That Adjudicator decided that HC was entitled to LDs of £638k. Also, 'for reasons not immediately...
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20th May 2003City Inn v. Shepherd Construction Ltd [2003] ScotCS 146This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes
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11th April 2003Deko Scotland v Edinburgh Royal Joint Venture & Anor [2003] ScotCS 113This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In adjudication there is an implied power to have any award of costs or expenses taxed by the Auditor of Court. Before the award of expenses could be enforced the successful party's account must be agreed or remitted to the Court for taxation. Lord Drummond Young of the Outer House, Court of Session 11 April 2003 The Defendants (the JV) were the participants in a joint venture set up to design and construct the new Edinburgh Royal Infirmary and Medical School. Deko was a sub-contractor. The sub-contract contained provisions for adjudication in terms of the HGCRA 1996 with the procedure governed by the ORSA Adjudication Rules – 1998 Version 1.2, subject to a large number of amendments. The issue here was in relation...
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11th April 2003Construction Centre Group Ltd v Highland Council [2003] ScotCS 114This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Contractual termination provisions that suspend payment obligations will be construed so that they are consistent with the purpose of the HGCR Act 1996. Also, a claim that might have been relied upon before an Adjudicator, but was not, cannot subsequently be set off against that Adjudicator's decision. Extra Division, Inner House, Court of Session 11 April 2003 HC engaged CCG to design, construct and maintain works. The Contract incorporated conditions based on the ICE Conditions of Contract, 5th ed., 1973 (Jan. 1979 revision), with amendments. A dispute was referred to adjudication. The Adjudicator awarded CCG £245k, to be paid within 7 days. HC did not pay and CCG sued. At first instance, HC claimed,...
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7th April 2003Hills Electrical & Mechanical Plc v Dawn Construction Ltd [2003] ScotCS 107This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Where the parties do not make adequate provision as to payment, the Scheme for Construction Contracts will fill in the gaps. If some points have been agreed, these will not be replaced by the Scheme. The Scheme's payment provisions will not sweep away what the parties have agreed as to payment. Lord Clarke, Outer House, Court of Session 7 April 2003 H entered into a sub-contract with D, the main contractor. D's employer had gone into administration on 10 October 2000. H commenced this action to recover sums due with interest from 5 October 2000. H claimed that the sub-contract failed to provide dates on which H should make applications for payment and also contained a pay when certified provision relating to the main contract. H said...
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20th March 2003St. Andrews Bay Development Ltd v HBG Management Ltd [2003] ScotCS 103This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Adjudicators' decisions can be enforced even though given late. Lord Wheatley, Outer House of the Scottish Court of Session 20 March 2003 HBG commenced an adjudication against its employer, St Andrews, under the JCT standard form, with Contractor's Design, Scottish edition. On 5 March 2003 (when the adjudicator's decision was due), HBG telephoned the adjudicator at 5pm to ask about her decision. HBG were told that the adjudicator had reached a decision but did not intend to release it until her fee had been paid (even though an invoice had not yet been sent). The adjudicator then faxed an invoice for her fee to the parties. On 6 March 2003 HBG said they would pay the fee. On 7 March 2003 the adjudicator released her...
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3rd March 2003Vaughan Eng. Ltd v Hinkins & Frewin Ltd [2003] ScotCS 56 CA 202/02This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In Scotland, when seeking to defend an action for the enforcement of an adjudicator's decision, the Defendant simply needed to plead in defence that the adjudicator's decision was invalid. Lord Clarke (Outer House) Court of Session 3 March 2003 This was an action for summary judgment for enforcement of an adjudicator's decision dated 22 October 2002. The parties had entered into a DOM/1 Contract 1980 Edition with Amendments, under which VE agreed to execute certain mechanical works in connection with the modernisation of research laboratories for the University of Reading. As the contract did not contain adjudication provisions, the Scheme for Construction Contracts applied. An adjudication had taken place and VE sought to enforce the Adjudicator's...
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10th January 2003Hart Builders (Edinburg) Ltd v St. Andrews Ltd [2003] ScotSC 14 A69/02This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court dismissed a claim in respect of an interim payment. The claim was on the basis that no withholding notice had been served. If there was a dispute about whether or not sums were due, in reliance on SL Timber, no withholding notice was required. Sheriff Principal Iain Macphaill QC, Appeal 10 January 2003 This was an appeal from an interlocutory judgment given by Sheriff Poole in August 2002. Hart Builders had been engaged by St Andrew to undertake works at a new development, the Caledonian Village, near Haymarket Station in Edinburgh. A dispute arose when St Andrews failed to pay Hart pursuant to an interim certificate. No withholding notice had been served. Hart issued proceedings for payment on the basis that no valid withholding...
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17th December 2002A v B [2002] CA 110/02This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication A decision of an Adjudicator is binding until superseded by litigation or arbitration. The defending party could not rely on rights of set off in the enforcement proceedings (for liquidated damages) as it had not raised these during the adjudication Lord Drummond Young, Outer House Court of Session 17 December 2002 The Defendant B were main contractors undertaking a design and build project. A were sub-contractors engaged to carry out the design and installation of roofing and wall cladding. A and B had concluded a sub-contract based on the SBCC Scottish Building Contract With Contractor's Design (September 1995 revision) as amended by a standard form of sub-contract provided by B. During the course of the sub-contract disputes arose and were referred by A to Adjudication...
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17th December 2002Ballast Plc v Burrell Ltd [2002] : P336/01This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator should consider the claims put forward in the notice of referral and decide whether they are validly asserted under the contract. If he declines to address this, he will not exercise his jurisdiction to determine the dispute. Lord President, Lord Johnston, Lord Weir, Extra Division, Inner House, Court of Session (Scotland) 17 December 2002 This was an appeal from the first instance decision reported at page 72 of Adjudication Watch. At first instance, the Court had decided that the adjudicator's decision, under the Scottish Scheme for Construction Contracts, was a nullity since the adjudicator had not addressed the question put to him. The adjudicator had considered that he could only consider the terms of the contract entered into...
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28th November 2002Skanska Construction v ERDC Group [2002] Ct of Session P1193/02This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The dispute referred in the second adjudication was not the same or substantially the same as that referred in the first adjudication. The fundamental nature and parameters of the dispute were different. Lady Paton, Outer House Court of Session. 28 November 2002 S applied to the Court for an interim interdict and interim suspension in order to halt construction contract adjudication between S and ERDC. S and ERDC had entered into a SBCC Domestic Sub-Contract Conditions DOM/C/SCOT (1997 Edition - August 1998 Revision) for landscaping works. Two adjudications arose during the course of the execution of the sub-contract works. The first related to an application by ERDC for interim payment, where ERDC believed it was owed sums in satisfaction of a claim...
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23rd August 2002Construction Centre Group Ltd v Highland Council CA127/02Here Lord Macfadyen had to consider a dispute arising in relation to the Small Isles and Inverie Ferry scheme. The defenders resisted payment of an adjudicator's decision in the sum of ?250k. By clause 66 of the contract, the parties had to give "effect forthwith to every decision of ... the Adjudicator on a dispute given under this clause" unless that decision was revised by agreement or the dispute had been referred to arbitration and an arbitral award had been made. The Highland Council argued that the effect of awarding summary judgment would be to give a final judgment in place of an interim decision. Lord Macfadyen disagreed, saying that not to allow enforcement would obstruct the purpose of section 108 of the HGCRA. One of the points of adjudication was to obtain payment on a provisional basis. CCGL were not asking the Court to endorse the soundness of the adjudicator's decision but...
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20th August 2002Hart Builders (Edinburg) Ltd v St.Andrews Ltd [2002] A69/02 Edinburgh
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2nd August 2002Edinburg Royal Joint Venture (Petition of) [2002] No: HT-02-121 Outer Ct of SessionThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The paying party's attempt to delay enforcement of the adjudicator's decision could not succeed when the terms of the contract were read as a whole. The receiving party's failure to pay liquidated damages due to the paying party did not prevent them relying on the contract to obtain enforcement. TG Coutts QC, Outer House, Court of Session (Scotland) 2 August 2002 An adjudication had taken place between E and Broderick Structures, E's sub-contractor. The adjudicator had awarded B an extension of time of 46 weeks (not the full period it had sought) and loss and expense of £556,000. E tried to prevent that decision being enforced by B. The Contract incorporated an adaptation of the ORSA (Official Referees Solicitors Association) Adjudication...
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27th June 2002Diamond (Gillies Ramsay) v PJW Enterprises [2002] Scotcs 340Lady Paton, in Scotland, had to consider an adjudication concerning a professional negligence claim. PJW employed Diamond as contract administrators on a refurbishment contract in Glasgow. During the course of the works a dispute arose which resulted in the termination of Diamond's appointment. PJW employed others in Diamond's place, brought a claim for professional negligence against Diamond and then referred that claim to adjudication. The adjudicator found against Diamond who resisted paying, claiming that the adjudicator did not have the power to award damages and that an appointment as a contract administrator was not a construction contract as defined by the HGCRA. Lady Paton held that Diamond's contract administration services qualified as surveying work thereby falling within the HGCRA. By agreeing to carry out contract administration services, Diamond had entered into an agreement...
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30th May 2002VA Tech Wabag UK Ltd v Morgan Ltd [2002] CA 46/02This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The fact that the pursuer (claimant) could have proceeded to adjudication to recover sums due to it did not prevent the Court granting an interim injunction to stop the defenders hindering the release of funds from a joint account. Opinion of Lord Drummond Young, Outer House, Court of Session 30 May 2002 V and M were part of a construction consortium to design, procure and construct a sludge treatment plant. Payments for the work were made into a joint account. M claimed that it had carried out ancillary services which were part of V's share of the works and proposed certain adjustments to the payment due under two payment certificates. V disputed this, and M refused to consent to or assist in the distribution of monies to V from the joint account...
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3rd May 2002Barry D Trentham Ltd v Lawfield Investments Ltd [2002] Ct of Session A 680 /02
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22nd March 2002Fab-Tek Engineering Ltd v Carillion Construction Ltd [2002] Dunfermline Sheriff Court
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8th February 2002Quality Street Properties Ltd v Elmwood [2002] 258/2002 SThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Reaching a compromise agreement in relation to a dispute, which might otherwise be referred to adjudication, could oust the jurisdiction of an adjudicator, as there would no longer be a dispute. Sheriff Principal Edward Bowen QC 8 February 2002 This was an appeal from a first instance decision of the Sheriff denying Q an injunction to stop E from appointing an Adjudicator pursuant to a Scottish Minor Works Contract. The Contract Works involved alterations to properties in Glasgow, which were completed in November 1999. Following completion of the works E started an action in Court against Q for sums it believed were owed to it under the Final Account. Q lodged detailed defences the substance of which were that the Contract Price had been the subject...
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31st January 2002Clark Contracts v Burrell Ltd No 2 [2002] A7038/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An Interim Certificate under the JCT forms is not conclusive evidence as to the amount due, but the sum stated as due in it is still a "sum due under the contract" and payment of it is due in accordance with the terms of the JCT contracts Sherriff James A Taylor January 2002, Court of Session B employed C by a contract in relation to the re-development of 8 flats in Glasgow. The contract was governed by SBCC Design Portion with Quantities (September 1997 Revision) Building Contract with Scottish Supplement 1980 (Revised, July 1997) to the conditions of the Standard Form of Building Contract 1980 Edition with Quantities. The architects engaged by B issued Interim Certificate No. 11 in the gross amount of £486,529.42. Net of retention the sum...
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22nd January 2002Karl Construction Ltd v Sweeney Civil Eng. Ltd [2002] SLT 312P/872/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudicator is not fettered, when applying the relevant law, by the parties' representations: it is open to the adjudicator to reach a conclusion different from that agreed by the parties. A failure by the adjudicator to seek further representations from the parties before reaching a conclusion different from their agreed position is not necessarily a breach of the rules of natural justice. Extra Division, Inner House, Court of Session Lord Marnoch, Lord Dawson, Lord Clarke 22 January 2002 The petitioners (K) brought a reclaiming motion against the dismissal by the Lord Ordinary of a petition for judicial review of an adjudicator's decision under the HGCR Act 1996. The facts of the case and decision by the Lord Ordinary are set out on page...
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8th August 2001Stiell Facilities Limited v Sir Robert McAlpine Limited [2001] ScotHC 82
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7th August 2001Maxi Construction Ltd v Mortons Rolls Ltd [2001] Outer Ct of SessionThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes To constitute a claim for payment pursuant to paragraph 12 of the Scheme the relevant application must be an application for payment, not simply an application for valuation and certification. It must also state the basis on which the payment claimed was calculated. Lord Macfadyen, Outer House, Court of Session 7 August 2001 MC carried out certain construction works for MR. The contract between the parties was a construction contract within the meaning of HGCR Act 1996. MC contended they were entitled to an interim payment on the basis of a document they called "Application for Payment 10" and decree de plano (judgment granted in all respects) should be pronounced. MR contended that the document relied on by MC did not constitute an application for...
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17th July 2001City Inn Ltd v Shepherd Construction Ltd [2001] Outer House. CA 101/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's decision does not affect the burden of proof in arbitration or court proceedings. Lord MacFadyen, Outer House, Court of Session 17 July 2001 CIL engaged SCL as the contractor for the construction of a hotel in Bristol under an amended JCT Standard Form of Building Contract Private Edition with Quantities (1980 Edition). The project over-ran. The Architect certified SCL an extension of time of 4 weeks. An adjudicator granted SCL a further 5 weeks. The dispute went to court, CIL contesting both the 4 week and 5 week extensions of time, claiming liquidated and ascertained damages and repayment of loss and expense certified by the Architect. SCL said that the adjudicator's decision threw the burden of proof on to CIL to show that the...
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5th July 2001British Waterways Board [2001] ScotCS 182This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In Scotland at least, an interim order preventing for a time the commencement of adjudication proceedings can be obtained, on the basis that there is no dispute which can properly be referred to adjudication at that time. To get such an order a party will have to show that the balance of convenience favours delaying the adjudication Lord McCluskey, Outer House, Court of Session 5 July 2001 The petitioner sought an interim order to prevent the respondent, for a time, from commencing an adjudication. Lord McCluskey began by saying that, when interim orders in petitions for judicial review are sought, the court must be satisfied that the petitioners have a prima facie case, that is, a case to try. If this succeeds, the court will look at where the...
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27th June 2001SL Timber Systems Ltd v Carillon Construction Ltd [2001] ScotCS 167This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Even if one party has failed to give a timeous notice of its intention to withhold payment, the other party is still obliged to show that he is entitled to the sums claimed under the contract. In Scotland challenges to the enforcement of adjudicators' decisions on grounds of the receiving party's inability to repay the amount awarded in later proceedings are unlikely to be upheld. Lord Macfadyen, Outer House, Court of Session 27 June 2001 S sought to enforce an adjudicator's award for three sums under three contracts for the supply and erection by S for C of structural timber kits. (The form of contract used is not clear from the judgment, but it is clear that the adjudication provisions did not comply with HGCRA 1996 and therefore the Scottish...
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26th June 2001Naylor (William) v Greenacres Curling Ltd [2001] Outer Ct of Session P514/01This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court (in Scotland) may be prepared to grant interdict and suspension to prevent a void adjudication from proceeding. Where the remedy of interdict and suspension is sought, the Court of Session is being asked to exercise its supervisory jurisdiction and the application must therefore be made by way of petition for judicial review. Lord Bonomy, Outer House, Court of Session 26 June 2001 P entered into a contract with G to lay and finish a concrete surface at an ice rink. The provisions of the Scottish adjudication Scheme applied to that contract. P completed the works and rendered an invoice. G refused to pay on the basis that the concrete supplied did not comply with the contract specification. In the first adjudication initiated by the petitioners,...
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21st June 2001Ballast Plc v Burrell Ltd [2001] P336/01This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator appointed under section 108 of the HGCR Act 1996 decided the dispute was incapable of resolution by adjudication as the parties had departed from the terms of a JCT contract, he acted outside his jurisdiction and his decision was a nullity. Lord Reed, Outer House, Court of Session 21 June 2001 BC employed B to act as management contractor for a project under a standard JCT form of management contract. A dispute arose between the parties and it was referred to adjudication under section 108 of HGCR Act 1996. The provisions contained in Part I of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998 (the adjudication provisions) had taken effect as implied terms of the contract. The adjudicator gave...
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15th June 2001Barr Ltd v Law Mining Ltd [2001] ScotsCS 152This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes 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,...
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13th June 2001Mitsui Babcock Energy Services Ltd [2001] ScotsCS 150This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In determining "construction operations" under s105(2)(c) HGCR Act 1996, the adjudicator should look at whether the object of the "construction operation" was to further the activities described in s105(2)(c). Lord Hardie, Outer House, Court of Session 13 June 2001 In September 1999, M and the first respondent (FWE) entered into a contract. FWE was required to deliver prefabricated equipment and piping to the site; M was to assemble the equipment into two complete boiler plants on land within a petrochemical complex operated by a BP company at Grangemouth. The boilers were constructed on behalf of and operated by CHP who was contracted to sell the steam to BP. In July 2000, M issued a Notice of Adjudication concerning FWE's alleged failure to pay...
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13th March 2001Watson Builders Service [2001] ScotCS 60This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An Adjudicator has the power to determine the meaning of the sub-contract terms even if this results in him determining a dispute about the validity of his appointment and therefore his jurisdiction. Lady Paton, Outer House Court of Session (Scotland) 13 March 2001 W were appointed as main contractors to carry out building works at a church in Glasgow. They entered into a sub-contract with the second respondents, Miller (Preservation) Ltd, in respect of rot eradication. The sub-contract documents comprised a quotation dated 2 February 1999 and counter-offer dated 24 April 1999. The parties agreed that the sub-contract was a "construction contract" within the meaning of s104 of the HGCRA. A dispute arose in relation to the sub-contract work. Miller...
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21st December 2000Karl Construction Ltd v Sweeney Civil Eng. Ltd [2000] ScotCS 330This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudicator is not fettered, when applying the relevant law, by the parties' representations: it is open to the adjudicator to reach a conclusion different from that agreed by the parties. A failure by the adjudicator to seek further representations from the parties before reaching a conclusion different from their agreed position is not necessarily a breach of the rules of natural justice. Extra Division, Inner House, Court of Session Lord Marnoch, Lord Dawson, Lord Clarke 22 January 2002 The petitioners (K) brought a reclaiming motion against the dismissal by the Lord Ordinary of a petition for judicial review of an adjudicator's decision under the HGCR Act 1996. The facts of the case and decision by the Lord Ordinary are set out on page...
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23rd June 2000Stiell Ltd v Riema Control Systems Ltd [2000] Inner Ct of Session X1/53/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An arrestment may be made in court proceedings to freeze monies that an adjudicator has previously held are not due and owing. Such an arrestment is not oppressive Lord Prosser, Lord Philip and Lord Caplan, Extra Division, Inner House, Court of Session (Appeal from Sherriffdom of South Strathclyde, Dumfries & Galloway) 23 June 2000 This case concerns the issue of arrestment in Scottish proceedings. R instructed S to carry out supply and installation of control and electrical equipment. The contract contained an adjudication clause providing that the CEDR rules applied. In December 1999, S commenced adjudication proceedings concerning a valuation dispute, including valuation of additional work. In February, the adjudicator found that the total...
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18th May 2000Strathmore B.S. Ltd v C.S.Greig [2000] Outer Ct of Session CA 19/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A valid notice to withhold payment must be given in writing, and should not be served prior to the application for payment to which it relates Lord Hamilton, Outer House, Court of Session 18 May 2000 This case focused on the requirements of a notice to withhold payment under section 111 of the Act, under the standard form of contract, JCT Works Contractors Design 1998, Scottish edition. In this case, H had put forward a without prejudice offer in relation to monies outstanding to S. H claimed that liquidated damages and direct costs were due to it for the S's failure to complete on time. S ignored this offer, and submitted an invoice, which was accepted as their application for payment. H telephoned S's office and left a message with the telephonist...
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12th July 1999Allied London & Scottish Properties Plc v Riverbrae Construction Ltd [1999] ScotCS 170This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudicator's failure to consider all possible alternatives did not invalidate his decision. No lawful basis for postponing payment of sums awarded to referring party, including payment of award into joint deposit account. Lord Kingarth, Outer House, Court of Session (Scotland) 12 July 1999 R contracted to execute works for A under a number of construction contracts. R claimed payment under 4 of these, and payment was disputed. R therefore gave notice of its intention to refer these disputes to adjudication. The adjudicator conducted the adjudications as 4 separate proceedings, and made final decisions in each case that A pay R various sums under each contract within 14 days with interest. A sought judicial review of these decisions. A claimed...
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12th March 1999Rentokil Ailsa Environmental Ltd v Eastend Civil Eng Ltd [1999] CILL 1506This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes 12 and 31 March 1999 E entered into a series of contracts with R to carry out minor engineering works at 15 sites. In November 1998 R indicated that it would make no further payments for any sites because of concerns about defects on 4 sites. Three of the contracts were entered into after 1 May 1998, but contained no adjudication provisions, therefore the Scottish Scheme for Construction Contracts applied. E issued notices of adjudication for these 3 contracts claiming payment of unpaid invoices The adjudicator awarded sums totalling £141,000 to E, but R did not pay nor did it sign its consent to the decisions being registered in the Books of Council and Session. E applied to the court for enforcement of the decisions, but shortly before the...