The Scottish Judge in the recent case of ATG Services (Scotland) Ltd vs Ogilvie Construction Ltd [2024] CSOH 94 laid it on the line. He said: “The defence to this action is entirely without merit.” It was an adjudicator’s decision that awarded over £1m to ATG. But Ogilvie did not pay. So the groundworks subcontractor came to court to get the award enforced.

There was, said the judge, “a squall got up by the defender” Ogilvie, but none of it impressed the judge. Very experienced counsel for Ogilvie argued this way and that, and cleverly advanced all sorts of reasons to give the elbow to the adjudication award, but none of it, not even a teeny-weeny bit, got home. He enforced the award then required Ogilvie to pay the legal costs at the highest scale, saying it “fell comfortably within unreasonable behaviour”.

Let me tell you what’s up here. High-speed dispute resolution has trumped litigation. A device in the ADR stable such as adjudication has become embedded in our commercial world. It is flawed, yes. But not nearly as flawed as long drawn-out, immensely expensive litigation. Only those with deep pockets could afford to go to court. Adjudication, on the other hand, is a pocket battleship. It dashes in, dashes out and then – wallop – announces the result. It’s commercial.

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