In 2004, Whyte and Mackay Ltd (“W&M”) engaged Blyth & Blyth Consulting Engineers Ltd (“B&B”) to provide engineering design services for the construction of a new bottling facility in Grangemouth. A dispute arose over the design of the piling and foundations and in March 2012 (several years after the completion of the contract), W&M referred the dispute to adjudication. In April 2012, the adjudicator awarded £3m to W&M, a large part of which related to costs that would not be expended until 2035.

W&M sought to enforce the adjudicator’s decision. B&B resisted, arguing (amongst other things) that (i) there had been a breach of the rules of natural justice as the adjudicator had disregarded part of B&B's defence (ii) enforcement would constitute an infringement of its rights under the European Convention of Human Rights (“ECHR”) in that there would be disproportionate interference with its right to enjoy its possessions (in this case, money) under Article 1 of the First Protocol (iii) Article 6 of the Human Rights Act 1998 (right to a fair hearing) had been engaged and (iv) W&M had not suffered any loss and damage as any loss was future loss.

W&M contended the Court should assume that the adjudicator had taken into account all relevant information when reaching his decision. It further argued that upholding B&B’s ECHR rights would undermine the purpose of the Construction Act 1996 which was to ensure cash flow. Adjudication was designed to quickly provide an interim enforceable decision pending any final determination and the Court should be slow to find a lack of proportionality in the adjudication process.

The Court refused to enforce the award, holding there had been a very significant omission in the adjudicator’s decision and reasoning which constituted a breach of the rules of natural justice. When considering an ECHR-based challenge the court will usually be able to justify enforcement on the basis of the general interest benefits that arise from adjudication. However, in this case (where the losses constituted future loss) the Court considered enforcement would be an unjustified interference with B&B’s peaceful enjoyment of its possessions under Article 1. To enforce the award would be disproportionate, unfair and place an excessive burden on B&B and Article 6 of HRA did not apply in this case.