The court determined as a matter of construction that the appendix wording in the subcontract did not rule out applications before the dates in question. Leeds City Council concerned a different contract on different terms and did not assist. In relation to both the second and third arguments, Fraser J said that very clear words would have been needed to make the requirements relied on by Balfour, conditions precedent to the validity of the application. The judgment is dated 29 April 2020 but was published in June 2020. 4) Severance - Dickie Moore Ltd v Lauren McLeish [2020] CSIH 38 (Lords Menzies, Drummond Young and Malcolm) The pursuer was the contractor and the defender employer under a JCT contract for the construction of a dwelling house. The pursuer claimed entitlement to additional payment for the works, additional extensions of time and loss and expense on two grounds (less a concessionary credit), repayment of liquidated damages levied for the periods of extension, and reduction of various deductions made from the final account. They referred the dispute to adjudication and Mr Len Bunton was appointed adjudicator. The defender challenged his jurisdiction. Mr Bunton ruled against them and went on to award the pursuer £324,492.60, with interest of £16,733.59. He further found the pursuer entitled to an additional extension of time of 11 weeks, and in relation to that he allowed £63,093.47 by way of loss and expense. He held that the works final account should be higher by £181,607.17, that deductions for an alleged defect, liquidated damages, ground
retention and render to the main house were not justified, and that certain other deductions that had been made were excessive. Before the commercial judge on enforcement the defender said a material part of the dispute (as to extension of time) had not crystallised such that the adjudicator had no jurisdiction to hear the dispute. The offending parts could not be severed from the remainder because the dispute should be considered as a whole. There were three other grounds of objection but these were not relevant to the main issue which was severance. The commercial judge decided the matter as one of principle having regards to the underlying purpose of the Act, and that severance was possible, the remaining parts were not tainted by the severed parts, and should be enforced. The defender appealed against the severance. The Inner House (Lord Drummond Young giving judgment) looked at the statutory and contractual context. In the case of an adjudicator’s award that is partially valid and partially invalid, the valid part should be enforced if that was realistically practicable. That would depend on whether the valid and invalid parts of the award could be severed from each other, but in approaching severance, the court should adopt a practical and flexible approach that sought to enforce the valid parts of the decision unless they were significantly tainted by the adjudicator’s reasoning in relation to the invalid parts. [11] For example, the decision of Ramsey J in Cleveland Bridge UK Ltd v WhessoeVolker Stevin Joint Venture [2010] BLR 415 as expressly inconsistent with the previous Scottish decision in Homer Burgess Ltd v Chirex (Annan) Ltd, 2000 SLT 277 (see Cleveland Bridge at aragraphs 117-118), and appeared to be inconsistent with the approach taken in other cases, for example Akenhead J in Working Environments Ltd v Greencoat Construction Ltd, [2012] EWHC 1039 (TCC), and Pepperall J in Willow Corp SARL v MTD Constructors Ltd, [2019] EWHC 1591 (TCC).
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