Dickie & Moore Ltd v McLeish & Others

[2020] CSIH 38

This was an appeal from the decision discussed in Issue 234. As Lord Drummond Young said, the critical question at issue was the extent to which and the basis on which a court may enforce an adjudicator’s award where part of that award is outside the adjudicator’s jurisdiction because the dispute purportedly considered in that part had not crystallized. Lord Drummond Young also stepped back like Lord Briggs in Bresco to review the adjudication process. He was of the opinion:

“that the provisions of the Scheme should be interpreted in such a way that they achieve its fundamental purpose, which is to enable contractors and subcontractors to obtain payment of sums to which they have been found due without undue delay. In particular, the intention is to avoid delay caused by lengthy dispute-resolution procedure.”

The Judge continued that:

“the fundamental point is that the procedures used are intended to be simple, straightforward and immediately effective. Those considerations should in our view guide the approach to interpretation of the Scheme. In relation to an adjudicator’s award that is partially valid and partially invalid, the valid part should in our opinion be enforced if that is realistically practicable ... in approaching severance we consider that the court should adopt a practical and flexible approach that seeks to enforce the valid parts of the decision unless they are significantly tainted by the adjudicator’s reasoning in relation to the invalid parts.”

Lord Drummond Young was of the view that if an adjudicator erroneously adjudicates on one dispute and validly adjudicates on another dispute, the latter will be enforced “unless it is simply not possible verbally or mathematically to identify what his decision” on the other matter was. The Judge described this as the adoption of “a strong practical test”.

Whilst the adjudicator’s extension of time award, of 13 weeks, and the associated award for loss and expense of £63,093.47 could not stand, because the dispute had not crystallized, there were other elements of the adjudicator’s decision that could properly be enforced, as they were “untainted” by the decision and reasoning in relation to extension of time and loss and expense. For example, the court could not see why the treatment of a claim for extension of time and its consequences should have a bearing on other matters, say payments for measured work or additional works. Those were for work actually performed, not the increase in costs caused by delay. The court therefore agreed with the decision at first instance: the key question was whether there existed a “core nucleus” of the adjudicator’s decision that could safely be enforced.

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