This is a Scottish case where the Pursuers ("Norwest") were employed under the Contract by the Defender ("Carfin"), to construct certain works in connection with the stabilisation of abandoned coal mine workings beneath a site at New Stevenston Road, Carfin. The contract incorporated the ICE Conditions of Contract 5th Edition (January 1979 Revision) as further amended (the "Contract"), and pursuant to its terms an independent engineer was appointed (the "Engineer").

Norwest applied for summary enforcement for the sum of £216,860, which was the balance of amounts certified by the Engineer less amounts previously paid. Carfin had not issued a withholding notice under s111(1) of the Act for the last application for payment dated 21 September 2007. Carfin contended that the September application for payment was not a valid certificate issued by the Engineer. Alternatively, even if it was valid, Carfin argued that it was entitled to withhold payment pending resolution of its claims against Norwest for breach contract. Further, Carfin applied to stay the proceedings so that the dispute could be referred to the Engineer for settlement in accordance with the Contract.

Lord Glennie therefore was primarily concerned with whether the Court had jurisdiction to enquire into and decide the merits of the case. In deciding this motion, it was treated as analogous to stays for domestic arbitration at common law. Lord Glennie looked at several examples of relevant case law, and settled upon the following passage of Lord Johnston in Orkney Islands Council as a succinct explanation of the necessary test:

"The jurisdiction of the arbiter should only be ousted by the Court if there is no basis upon which a two sided dispute can be identified."

Lord Glennie formed the view that Carfin has not raised a real dispute or difference so that the matter should be stayed. The application by Norwest was one that could properly lead to the Engineer certifying an amount under the Contract. Carfin had contended that the application was not supported by sufficient material and that therefore, under the Contract, the Engineer could not certify an amount. Lord Glennie decided that the obligation upon the Engineer was a discretionary one.

Secondly, Carfin had attacked the validity of the certificate issued by the Engineer. Carfin suggested that the document was not in form, substance and intent a valid certificate. Whilst Lord Glennie did not accept this:

"The certificate took the form of a letter to CRGP (the defenders' project manager). It referred in terms to the pursuers' "ninth application for payment". It stated that "a current value of completed works has been assessed ...", and went on to say "we therefore certify the amount of £1,136,525.00 (zero rated for VAT) and would ask you to make payment directly to the Contractor, less any amounts previously paid". As a matter of form that is unobjectionable. As a matter of substance it identifies the amount due and requires payment of that amount less any amounts paid. In the context of the application for payment, it tells the employer plainly what he is required to pay."

Carfin also argued that they could withhold payment notwithstanding the absence of a withholding notice as the decisions of Strathmore Building Services v Greig and Clarke Contracts Limited v The Burrell Co (Construction Management) Limited were not binding on the Court. Lord Glennie disagreed as the authorities were on point and the decisions were clearly correct.

As the points raised by Carfin gave rise to no real dispute Lord Glennie refused the motion to stay proceedings and gave judgement in favour of Norwest.