Don’t throw the baby out with the bath water!

Claims that adjudicators lack jurisdiction are commonly deployed by respondents in adjudications.  Often on the basis that disputes have not crystallised.

In a persuasive decision for the English courts, the Scottish Court of Session has confirmed in the case of Dickie & Moore Ltd v McLeish and others [2020] CSIH 38 that where parts of a claim referred to adjudication have not crystallised, meaning that the adjudicator lacked jurisdiction on those issues, the court should where it was “realistically practicable” sever the decision in order to remove the non-crystallised parts and enforce the crystallised parts.  The test is whether the crystallised parts can be enforced without being tainted by the non-crystallised parts.  It is all a question of degree.

The judge remarked that this approach is consistent with the underlying purpose of adjudication to achieve interim decisions which can be enforced quickly in order to aid cash flow.

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