DC Community Partnerships Ltd, the pursuer, sought to enforce an adjudicator’s decision against Renfrewshire Council, the defender. This case underlines the importance of  adjudicators to ensuring that they address all of a party's submissions and to establish the sums due in accordance with the Housing Grants Construction and Regeneration Act 1996 (as amended).

Renfrewshire Council contracted with DC Community Partnerships Limited for the construction of a special needs school at Linwood. The parties’ contract incorporated Option C of the NEC3 Engineering and Construction Contract (ECC) (June 2005), as amended. A dispute arose between the parties as to the sum Renfrewshire Council was liable to pay DC in respect of payment certificate 33. When the dispute was referred to the adjudicator, it was held that the payment certificate 33 should be opened up, reviewed and revised so as to increase the amount due to Renfrewshire Council by £820,425.76. The adjudicator also made ancillary orders relating to the payment of VAT, interest, and his fees.

Lord Doherty in the Outer House of the Court of Session held that the adjudicator had failed to exhaust his jurisdiction when he failed to deal with a set-off defence. It was held that the adjudicator failed to consider the Council’s entitlement to deduct liquidated damages which had been claimed at more than half the additional sum awarded by the adjudicator. The Court considered whether section 111 of the Housing Grants Construction and Regeneration Act 1996 (as amended) and the Council’s failure to serve a pay less notice meant that it was precluded from raising its set-off defence. Lord Doherty held that the “notified sum” in section 111 could not sensibly be construed as including any additional sums that an adjudicator may later decide. It could only refer to the sum specified in the payment notice. Section 111 clearly distinguished between "the notified sum" and "the additional amount" which an adjudicator may decide is due.

In this case, "the notified sum" was the sum specified in payment certificate 33. The Council was content to pay that sum and indeed paid it. The Council's later advancement of its set-off defence did not alter its position in relation to the notified sum as it only sought to set off delay damages against any additional sums the adjudicator might decide were payable. This case serves as a warning to adjudicators to ensure they address all of a party's submissions, at least to give “some brief, intelligible explanation” of why any particular points are rejected. A blanket statement that the adjudicator has considered all of the submissions may not suffice in all cases.