Morgan Sindall Construction and Infrastructure Ltd v Westcrowns Contracting Services Ltd

[2017] ScotCS CSOH 145, Outer House, Court of Session, Lord Clark, 30 November 2017

Adjudication – Whether defender barred from taking jurisdictional point – One or two disputes? – Alleged failure to consider relevant consideration or to exhaust jurisdiction

The pursuer entered into a contract with the defender under which the defender agreed to carry out works involving the installation of soft flooring to classrooms, corridors and ancillary spaces in a school. After installation of the vinyl floor covering, the parties became aware of what were described as "bubbling and blistering" in the flooring. The pursuer sent to the defender a schedule of defects and in that correspondence the pursuer contended that the defects were caused by three failures on the part of the defender, namely use of an incorrect primer, inadequate application of the primer and a failure properly to test for the presence of moisture in the anhydrite screed prior to laying the flooring. The defender did not accept the pursuer's characterisation of the problems and so the matter was referred to adjudication in which the pursuer sought to recover the cost of having the entire floor replaced by another contractor.