Adjudication, severance and single disputes

In Dickie & Moore Ltd v Ronald James McLeish, Mrs Diane McLeish and Catriona Watt as Trustees of The Lauren McLeish Discretionary Trust (No 2) [2019] CSOH 87, Lord Doherty held that there was no rule of law that severance cannot be granted in a case where there is in existence a single dispute between the parties. Further, he held that the rationale underlying the general principle that severance is not available in a single dispute adjudication is that in such cases it may be more difficult to show that the reasoning in the invalid part of the decision had no impact on the other parts of the decision. This being the case, if it is possible to show that there was no such impact then the valid part may safely be severed. This was held to be the case on the present facts where parts of the decision of the adjudicator were held to be enforceable, together with his award of interest, although matters were held to be rather more difficult in the apportionment of responsibility for the adjudicator’s fees and expenses. In the latter case it was held not to be possible to second guess the decision of the adjudicator and resort was had instead to the underlying terms of the agreement between the parties in relation to responsibility for the fees and expenses of the adjudicator.