This was the second opinion of Lord Doherty following the adjudication between Dickie & Moore Limited (the “Pursuer”) and Ronald James McLeish, Mrs Diane McLeish and Catriona Watt as Trustees of The Lauren McLeish Discretionary Trust (the “Defenders”). In his previous opinion provided on 12 September 2019 ([2019] CSOH 71), Lord Doherty held that a very material part of the dispute which the Pursuer had referred to adjudication – namely a claim for extension of time and loss and expense – had not crystallised. As a result, it was determined that the adjudicator did not have jurisdiction to decide that aspect of the claim. This second opinion addressed whether the adjudicator had jurisdiction to decide other aspects of the claim and whether his decision on those other aspects could be severed and enforced by the Pursuer. 

The Defenders alleged that, as it was a single dispute which had been referred to adjudication and as there was a part of the single dispute which had not crystallised, the adjudicator did not have jurisdiction to decide any part of the dispute. In addition, the Defenders alleged that, on a proper construction of the contract, the parties had agreed to be bound by “the decision” of the adjudicator, not a part of the decision (paragraph 23(2) of the Scheme cited). 

Lord Doherty referred to numerous judgments whilst providing his opinion, one of which was Pepperall J in Willow Corp SARL v MTD Contractors Limited [2019] EWHC 1591, where Lord Doherty agreed with Pepperall J that the critical question, in circumstances such as the one in the present case, is not whether there was a single dispute or difference, but whether there is a core nucleus of the decision which can be safely enforced. The Judge considered that it would be safe to enforce a core nucleus of a decision where that part of the decision was reached separately and independently from the unenforceable parts.

In the present case, Lord Doherty held that there was a core nucleus of the adjudicator’s decision which could be severed and safely enforced. It was clear to Lord Doherty that the adjudicator’s decision on the valuation of the Bill of Quantity works, variations, architect’s instructions and the decisions as to whether deductions could be made, were reached separately and independently from his decisions on the claim for extension of time and loss and expense. 

Lord Doherty finally considered the adjudicator’s award of fees and expenses. He noted that, although it was unlikely that the adjudicator would have apportioned his fees and expenses differently if his award was restricted to the core nucleus of the decision, it was not clear or obvious to Lord Doherty that the adjudicator’s apportionment would have been the same. He did not consider that it was for the court to second guess what the adjudicator would have done and, therefore, held that the adjudicator’s award of fees and expenses could not be enforced.   

Comment

This is a rare decision from the court in relation to severing disputes.  Whilst it is unclear as to the approach that will be followed by UK courts, parties will need to ensure that decision can be separated into sections.