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Entexol LTD against Sked Construction LTD (Court of Session)
Factual and Procedural Background
Company A was engaged as a subcontractor by Company B for works being carried out for a third-party energy network company. Disputes under the subcontract were referred to adjudication. In the second adjudication, the adjudicator decided that Company B should pay Company A £113,767. Company A brought this action to enforce that award. [1][2]
Company B argued that the award was unenforceable because the adjudicator had breached natural justice by deciding that “time was at large” without giving the parties an opportunity to address that issue. [1][2]
Legal Issues Presented
- Whether the adjudicator’s decision was unenforceable for breach of natural justice because the adjudicator concluded that time was at large without inviting further submissions. [3][4][5][6]
- Whether Company A was entitled to summary decree for a further £10,000 claimed in the third conclusion. [7][8]
Arguments of the Parties
Defendant’s Arguments
- Neither party had submitted that time was at large, so the adjudicator had adopted a novel approach or gone on a “frolic of his own.” [5]
- After rejecting the alleged fixed completion date of 13 November 2024, the adjudicator should have allowed Company B to address what constituted a reasonable completion period. [5][6]
- There remained a factual dispute concerning the documents said to be required in support of the £10,000 claim. [7]
Plaintiff’s Arguments
- The completion date was part of Company B’s own case, and assessing its contra-charge claim required the adjudicator to decide whether a binding completion date existed. [9]
- Company B bore the burden of establishing the date by which the works should have been completed. [9]
- Even if the completion-date issue had been decided in Company B’s favour, Company B had not established that it suffered loss from delay; accordingly, any error concerning time was immaterial. [9][10]
- The condition attached to the £10,000 claim had been satisfied because the necessary information had allegedly been provided by email. [7]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Van Oord UK Limited v Dragados UK Limited [2022] CSOH 30, [2022] SLT 521 | Adjudicators’ awards are generally enforced summarily, but enforcement may be refused where the procedure involved a failure to comply with natural justice. | The court treated this as the applicable framework for determining whether the award could be enforced. [3] |
| ATG Services (Scotland) Limited v Ogilvie Construction Limited [2024] CSOH 94 | The central question is whether the parties knew of the point against them and had an opportunity to respond before the decision. | The court relied on the reiterated natural-justice approach in assessing whether the adjudicator had improperly introduced a new issue. [4] |
| Premier Modular Limited v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) | The same principles concerning non-enforcement for procedural unfairness and lack of opportunity to respond. | The court considered the authority alongside the Scottish authorities but found no relevant procedural unfairness on the facts. [4] |
Court’s Reasoning and Analysis
The court accepted that adjudicators’ awards are normally enforced summarily and that natural-justice failures may justify refusing enforcement. The essential question was whether the parties had notice of the relevant issue and a fair opportunity to respond. [3][4]
The adjudicator had been asked to decide whether Company B had established a contra-charge based on alleged late completion. Company B’s case depended on the assertion that the works had to be completed by 13 November 2024. [11][12]
The adjudicator rejected the contention that the relevant email imposed that completion date and concluded that Company B had not established a key element of its contra-charge case. The reference to time being at large was therefore a consequence of rejecting Company B’s case, rather than an independently introduced basis for decision. [13][14][12]
The court considered that Company B had not advanced an alternative case that the works were completed outside a reasonable time. The adjudicator had not conducted his own investigations; he had rejected the case presented by Company B. [15]
The court rejected the submission that the adjudicator was required to invite further submissions after deciding that the alleged contractual completion date had not been established. Such a requirement would not ordinarily apply in court proceedings, and adjudication is intended to be quicker and more informal, subject to tight procedural timetables. [15][16][17]
In relation to the separate £10,000 claim, the court found that a potentially relevant defence remained and that the disputed factual issue could not be resolved on the material before it. Summary decree was therefore inappropriate. [17]
Holding and Implications
Decree granted for £113,767. The court found no relevant defence to the enforcement claim and sustained Company A’s first plea-in-law to that extent. [18]
The motions concerning the first conclusion for summary decree consequently fell away. The court refused both to find the defence to the £10,000 claim irrelevant and to grant summary decree for that sum. The case was continued for further procedure. [18]
The decision directly permits enforcement of the adjudicator’s award while leaving the £10,000 claim unresolved. No new precedent was set. [18]
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