AGB Scotland v Darren McDermott [2023] CSOH 31, 17 May 2023, Lord Sandison
Where the adjudicator did not consider a line of defence, the decision may (though
not necessarily would) be unenforceable for failure to exhaust jurisdiction. It was not
necessary for the adjudicator to have expressly referred in his decision to every issue
considered if it was plain on reading the decision that he must have considered the
particular line of defence in question.
Natural Justice – Failure to answer the right question; Challenge to enforcement of award arising from validity of final account statement – Broad Justice at high speed
Atalian Servant AMK Ltd v B W (Electrical Contractors) Ltd [2023] CSIH 18 Lord
President Carloway, Lords Woolman and Pentland (18 April, 2023) A contract provided that a final account statement (FAS) was ‘final and binding’ on the payee unless the parties agreed to modify it or the payee commenced
adjudication or court proceedings within 20 working days. Adjudication (and court)
proceedings were commenced within that time. The adjudicator resigned and a
second adjudication notice was served. The appellate court found that the
adjudication proceedings did not come to an end on the resignation of the first
adjudicator, and BWE had followed the correct procedure in serving a new notice.
The essential question in both adjudications was: what sum was properly due? The first notice meant BWE had “ their foot firmly in the door, as permitted by clause 33.4, by virtue of both the adjudication and the timeous, and still pending, litigation.” The challenge on that ground failed, the court agreeing with the dictum of Lord Briggs in Bresco : “pay now, argue later.”
The court also found there was no procedural unfairness. The adjudicator gave due notice to the parties of his line of thinking on what was termed ‘beck and call’ and the number of man hours worked and invited comment. AMK responded in detail
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