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 [2020] CSIH 38 the Inner House of the Court of Session dismissed an appeal from the decision of Lord Doherty and held that it was possible to sever a part of the decision of the adjudicator and to enforce the remainder of the decision. In so concluding, the Inner House affirmed, as a matter of Scots law, the existence of a more flexible approach to severance, according to which the fact that the dispute which has been referred to adjudication is a “single dispute” is not of itself a barrier to the exercise of the jurisdiction to sever the unenforceable parts of the decision of the adjudicator. The fact that the case is a “single dispute” case is a factor to be taken into account when considering whether severance is possible, but the critical question which must be answered by the court is a more “nuanced and flexible” one which requires the court to consider whether the adjudicator’s reasoning in the invalid part of the decision has had “a significant effect” on the reasoning in the otherwise valid parts of the decision. If it has, it is likely that severance will be impossible and the whole decision will fall. But, where it has not, it is more likely that severance will be possible so that effect can be given to the valid parts of the decision.