While we wait, patiently, for the amended Construction Act to come into force, the English and Scottish courts have parted company on the subject of Tolent clauses, which require one party to bear all the costs of an adjudication. Last year Yuanda v Gear, disagreeing with the original decision in Bridgewater v Tolent, said that a Tolent clause conflicted with the Construction Act by limiting the claimant’s freedom to refer a dispute to adjudication at any time and possibly depriving it of a remedy altogether. Since the clause was non-compliant, the adjudication provisions were replaced in their entirety by the Scheme’s Part I provisions.

In Profile v Elmwood, the Scottish court disagreed with Yuanda. It did not consider that the Tolent provision in the contract in question disabled a party from giving notice of adjudication at any time. It might act as a discouragement or disincentive, but it did not amount to a disablement. That view was reinforced by the fact that, if the existing law was as stated in Yuanda, it was difficult to understand why Parliament dealt with the point in the amending 2009 Construction Act. The court also rejected the Yuandalock, stock and barrel” approach to non-compliance of adjudication provisions. It saw nothing unworkable in incorporating the Scheme provisions only in respect of those contractual provisions which were non-compliant with section 108.

http://www.scotcourts.gov.uk/opinions/2011CSOH64.html