Final certificates, conclusive evidence, and contractually agreed time limits

D McLaughlin & Sons Ltd v East Ayrshire Council [2022] CSIH 42

In D McLaughlin & Sons Ltd v East Ayrshire Council [2022] CSIH 42, the Inner House of the Court of Session held, by a majority, that the defender was not entitled to succeed with its counterclaim to recover the sum which it alleged that it had overpaid to the pursuer in accordance with the decision of an adjudicator. The vital factor in persuading the majority to conclude that the defender was not entitled to succeed with its counterclaim was a term of the contract which required the defender to commence proceedings within 28 days of the date on which the adjudicator gave his decision. The failure of the defender to give notice within this time frame had the consequence that it was held not to be entitled to challenge the decision of the adjudicator in the present proceedings. However, the reasoning of the majority on the issues before the court was not identical and that, combined with the more detailed analysis provided by Lord Malcolm in his dissenting judgment, might suggest that the decision of the Inner House of the Court of Session may not be the last word on the matter.