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ARTICLE · 25 OCTOBER 2011

Case Law Update - October 2011

Keating Chambers
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A round of building/construction and properly case law updates by Keating Chambers over the past month.

United KingdomReal Estate and Construction
Professor Anthony Lavers LL.B (Lond) M.Phil. Ph.D D. Litt McI.Arb FRICS Barrister
Professor Anthony Lavers LL.B (Lond) M.Phil. Ph.D D. Litt McI.Arb FRICS Barrister

ADJUDICATION

Costs of adjudication in Scotland

Profile Projects Ltd v Elmwood (Glasgow) Ltd [2011] BLM Vol. 28 No. 6 (Court of Session Outer House)

The Scottish courts have taken a different approach from the English decision of Yuanda v WW Gear (Gideon Scott Holland) in holding that a Tolent-style clause would have to do more than act as a 'discouragement' or 'disincentive' to adjudication by pre-allocating costs to the referring party, in order to be non-compliant with the HGCR Act. It would actually have to 'disable' a party from reference. Lord Menzies also took the view that non-compliance did not bring in the entire Scheme for Construction Contracts, just the provisions necessary to put right the non-compliance.

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