That would amount to turning a single decision with an accompanying explanation of reasoning into a series of separate decisions. That was not an appropriate course. The Employer had succeeded in showing that the adjudicator's ultimate conclusion on the single dispute he was addressing was not enforceable. In the circumstances it could not be said that there was anything remaining which could be safely enforced.
Severance
The court had next to consider whether part of the decision i.e. as to the value of the Interim Payment Application 34, could be safely enforced. The starting point was that the court would enforce a decision whenever it was safe to do so; it would and could sever the good from the bad. The English authorities on the subject of severance were reviewed by the Inner House of the Court of Session in Dickie & Moore Ltd v McLeish[13]. Although not binding on the court, His Honour found the decision persuasive and helpful. The previous decisions reviewed were cases where the adjudicator’s decision was upheld in favour of the successful party in the adjudication but in a lesser amount. “Rather different considerations come into play when severance would lead not to enforcement of the adjudicator's award in a lesser amount but to enforcement of a particular part of the decision in question with that part having been a stage in the process prior to the ultimate decision.” Proceeding on the footing that severance was potentially available, it was necessary to consider whether a failure affecting one part of the Decision could be seen not to have tainted the remainder so as to leave the remainder intact. The creation of an artificial outcome was to be avoided. Here the adjudicator was not asked to make a series of separate decisions and still less did he regard himself as doing so. Rather he reached a single decision and set out his findings and conclusions as an explanation of the reasons for reaching that single decision. It would be artificial and inappropriate for the court to stop at any particular point in the chain of reasoning as set out and conclude that the decision was binding up to that stage but not as to the stages which followed.
The result in respect of Interim Payment Application 34
In light of the conclusion that no element of the Decision was enforceable, the question whether the Employer remained liable to pay the notified sum subject to subsequently seeking return of any overpayment notwithstanding the Decision, was academic (for the purposes of the court proceedings). That issue was not further addressed. The consequence of the finding that Payment Notice 34 was invalid was not so clear cut. Neither party had claimed any relief in respect of that issue. In addition matters had moved on to payment cycle 35 which would be a proper matter for any further dispute. On balance the court felt it was not appropriate to make any further declaration or grant any other relief.
[13] [2020] CSIH 38
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