Cases Part 2 2023 - final

payment as being governed by a new contract. The term 'beck and call' may have

been equally used to describe the changed nature of the works. The parties made

it clear to him that neither was suggesting there was a new contract, and any

initial attraction there might have been to that view was not persisted in as

informing his decision. The view as to a fair valuation might yet prove to be correct.

The court was not persuaded that the approach to valuation was a frolic of his

own but rather a genuine attempt to answer the question put to him. The

objection on that ground failed.

As to the issue of the validity of the final account statement, the adjudicator was

clearly entitled under paragraphs 13 and 20 of the Scheme (for Scotland) to raise it

with the parties. Once he had done so, there was extensive correspondence in

which every opportunity was offered and taken for each party's position to be

amply elucidated. In accepting BW's position, he had obviously rejected AMK's

position.

On each of the residual complaints, similar observations were made. On a fair

reading of the correspondence, each party was given ample opportunity to

advance its case. Indeed, if anything, the parties had been overindulged. None of

the relevant criticisms were made out.

Decree granted in favour of BW to enforce the decision.

In its action AMK sought declarations that (a) its Final Account Statement was

validly issued in terms of clause 33.3 of the subcontract; (b) it was final and

binding on BW unless and until the contrary may be determined in the substantive

action; and (c) that it was final and binding on Mr Bingham in his adjudication. It

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