AGB Scotland Ltd v McDermott
ScotCS CSOH_31
McDermott resisted enforcement of a (smash and grab) adjudication decision, saying that it did not properly address their line of defence that, as the appendix to a letter of 14 March 2022 had not been sent with the Interim Payment Notice or otherwise previously supplied to the Quantity Surveyor, there had not been proper specification given of the sums claimed in the Notice. McDermott said that:
“An adjudicator could not seek to rely upon general assertions to the effect that he had considered all submissions and documents - for a decision to be valid and enforceable, there must have been some effort made by the adjudicator to address the lines of defence advanced and to explain the basis upon which they had been accepted or rejected.”
Lord Sandison agreed to some extent, noting that:
“Put short, the Court will for the policy reasons canvassed in the authorities be slow to refuse to enforce an adjudicator’s decision. However, if the adjudicator’s decision plainly indicates that he failed in arriving at his conclusions to take into account and deal with a line of defence advanced before him, then that may (not necessarily will) lead to the conclusion that he failed to exhaust his jurisdiction and that his decision should be set aside.”
However, the Judge did not accept the factual argument put forward, noting that it was not possible to read the decision, other than as the adjudicator had decided, in that the letter of 14 March 2022 was validly included by reference in the Interim Payment Notice sent to the Quantity Surveyor in October: “at least in circumstances where that letter and its appendix had previously been sent to the Contract Administrator as a representative of the defender, and that the letter with its appendix contained sufficient detail to meet the requisite standard” In other words, had the specification to the contractual standard of the composition of the loss and expense claim been provided to the Quantity Surveyor? Yes, the Interim Payment Notice contained a reference to a document already in the hands of the defender's agents which contained adequate specification.
Lord Sandison concluded that:
“The defender’s criticism amounts merely to the suggestion that the adjudicator's reasoning was flawed and the resultant decision wrong. That is an irrelevant assertion in this context.”
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