Remedies - Scottish Construction Contracts - page 267

10.7 Interdict
Where it can be demonstrated by a party that a legal wrong is continuing or that they
arereasonablyapprehensivethatsuchawrongwillbecommitted,theyareentitledto
seek interdict against the wrong, see Hay's Trustees v. Young (1877). If the wrong has
been completed, and it cannot be contended that there is a likelihood of it recurring,
interdict will not be granted, see Earl of Crawford v. Paton (1911).
Both permanent and interim interdict can be granted in either the Court of Ses-
sion or the Sheriff Court. In practice, few actions in which interdict is sought proceed
beyond the interim interdict stage. The grant or refusal of interim interdict is often
determinative of the issue between the parties.
Assuming the pursuer can satisfy the court that they have title and interest to bring
the action and that they are confronted by, or threatened with, a wrong on the part of
the defender, interim interdict will still only be granted if the balance of convenience
favours the pursuer. To meet this test, the pursuer must demonstrate a cogent need
for interim interdict, see Deane v. Lothian Regional Council (1986).
Although a detailed examination of the law of interdict is beyond the scope of this
book, in the context of building contracts its availability as a remedy should not be
overlooked. he remedy is available should there be a continuing, or reasonably antic-
ipated, breach of contract.
10.8 Withholding payment
10.8.1 General
HavingexaminedtheissueofpaymentinChapter8,itisappropriatetoconsiderthe
remedies that are open to a party under a building contract who is, on the face of it,
obliged to make payment, but has reasons for not doing so. In Scotland, there exist
two distinct and separate remedies, namely, retention and compensation. These are
frequently confused. The term 'set-off' is often used in place of compensation. Here,
we will consider retention and compensation in the context of payment obligations. It
should, however, be noted that retention applies not only to obligations to pay but also
to all other obligations incumbent upon a party under a contract. The wider applica-
tion of retention is considered in Section 10.9.1. Finally, we will consider the statutory
right of paying less as contained within s.111 of the 1996 Act.
10.8.2 Retention
The principle of retention is, perhaps, best illustrated by the opinion of Lord Shand in
Macbride v. Hamilton & Son (1875) in which he stated:
[I]n cases of mutual contract a party in defence is entitled to plead and maintain
claims in reduction or extinction of a sum due under his obligation where such
claims arise from the failure of the pursuer to fulfil his part of the contract.