News
31 August, 2026
Court of Session enforces adjudicator’s decision and rejects natural justice challenge
[2026] CSOH 80 — Entexol Limited v Sked Construction Limited
Lord Lake has issued an opinion enforcing an adjudicator’s decision of £113,767, rejecting the defender’s argument that the decision was unenforceable because the adjudicator had departed from the parties’ submissions in concluding that “time was at large.”
Ampersand’s Brandon Malone appeared for the pursuer, Entexol Limited, instructed by HF Scotland LLP.
Background
Entexol was engaged as a subcontractor by Sked Construction for contract works being carried out for Scottish Power Energy Networks PLC. Disputes arose under the subcontract and were referred to adjudication. In the second adjudication, the adjudicator decided that Sked should pay Entexol £113,767. Entexol raised this action to enforce it.
The material dispute concerned contra charges advanced by Sked in a pay less notice, one element of which was a claim for costs said to arise from Entexol’s failure to complete the works on time. Sked’s position was that the completion date had been fixed as 13 November 2024 by an instruction issued by email on 12 July 2024.
The adjudicator did not accept that the email was an instruction as to the date for completion, and held that in any event a binding agreement as to time limits could not be imposed by a unilateral instruction. He found that time was at large, and decided that no damages were due for delay because no completion date had ever been agreed and because Sked had not demonstrated that Entexol caused delay to Sked’s own operations.
The challenge
Sked contended that neither party had submitted that time was at large, and that in reaching that conclusion the adjudicator had gone off on “a frolic of his own.” It was argued that, having rejected the case that the completion date was fixed by the email of 12 July 2024, the adjudicator ought to have afforded Sked an opportunity to establish what a reasonable period for completion would have been. Had it been given that opportunity, it would have taken it.
Entexol submitted that the question of the time by which the works should have been completed was part of Sked’s case before the adjudicator, not its own. As the party advancing an entitlement to a contra charge, Sked bore the burden of establishing the date by which the works ought to have been completed. The adjudicator’s conclusion was part of the answer to Sked’s case and arose from its own contention that there was a fixed date.
The decision
There was no practical dispute as to the applicable law, the relevant propositions having been restated by Lord Braid in Van Oord UK Limited v Dragados UK Limited [2022] CSOH 30, and reiterated in ATG Services (Scotland) Limited v Ogilvie Construction Limited [2024] CSOH 94 and Premier Modular Limited v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC). Lord Lake observed that although those authorities refer to the test being met where an adjudicator has gone off on a frolic of his or her own, the core issue is whether both parties had an opportunity to respond to the points against them.
Applying that approach, Lord Lake held that the adjudicator’s reference to time being at large was a consequence of his decision on the matters put before him, rather than the reason for that decision. Sked had claimed that the contract required completion by 13 November 2024, and the adjudicator had to consider whether he accepted that date. He did not. That had the consequence that Sked had not established a key element of its case and the contra charge would not be allowed. Properly analysed, the reference to time being at large was “something of a red herring.” This was not a case in which the adjudicator undertook investigations or inquiries of his own; he rejected the basis of the case put forward by the defender, who was aware that this was a matter the adjudicator would have to decide.
Lord Lake also rejected the argument that, once minded to reject Sked’s case on the contractual completion date, the adjudicator was bound to notify the parties and invite further submissions. No such requirement would exist in court proceedings, and adjudication is intended to be speedier and more informal, with tight timetables which would make such steps impracticable.
Disposal
Lord Lake was satisfied that there was no relevant defence to the claim in the first conclusion. He sustained the pursuer’s first plea-in-law to the extent of finding the defence in that regard irrelevant and granted decree in terms of the first conclusion, the motion for summary decree accordingly falling away.
In relation to a separate sum of £10,000 sought in the third conclusion, he refused the pursuer’s motions, considering that the defender potentially had a defence and that the disputed issue of fact underlying it could not be resolved on the material before him. The case will be put out By Order to determine further procedure.
The opinion is available on the Scottish Courts and Tribunals Service website here.