WH Malcolm Ltd, Re Judicial Review [2010] ScotCS CSOH_152 (10 November 2010)

WH Malcolm Ltd, Re Judicial Review [2010] ScotCS CSOH_152 (10 November 2010)

Rule 38 of the TeCSA contractually bars the petitioner from bringing proceedings to court in relation to the conduct of an ongoing adjudication until the adjudicator has made a decision or refused to do so, except in cases of bad faith. The issue of SMM7 measurement was not part of the dispute referred or decided in the first adjudication, and thus is not binding in the current adjudication. The petitioner has not demonstrated a prima facie case for interim interdict.

Citation
[2010] ScotCS CSOH_152
Parties
Petitioner: W. H. Malcolm Ltd; Interested Party: Amec Group Limited
Jurisdiction
Scotland
Judgment Date
10 November 2010
Procedural Posture
Judicial Review / Interim Interdict Application
Outcome
Interim interdict refused
Legal Topics
Adjudication, Interim Interdict, Jurisdiction of Adjudicator, Contractual Bar to Litigation
Construction Law Civil Procedure Adjudication Interim Interdict Jurisdiction of Adjudicator Contractual Bar to Litigation

Case Brief

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Parties

W. H. Malcolm Ltd

Petitioner

Amec Group Limited

Interested Party

Procedural Posture

Judicial Review / Interim Interdict Application

Legal Issues

  1. 1 Whether Rule 38 of TeCSA contractually bars recourse to court during ongoing adjudication
  2. 2 Whether the issue of SMM7 measurement method was decided in the first adjudication and is binding in the second
  3. 3 Whether the petitioner has demonstrated a prima facie case for interim interdict

Ratio Decidendi

Rule 38 of the TeCSA contractually bars the petitioner from bringing proceedings to court in relation to the conduct of an ongoing adjudication until the adjudicator has made a decision or refused to do so, except in cases of bad faith. The issue of SMM7 measurement was not part of the dispute referred or decided in the first adjudication, and thus is not binding in the current adjudication. The petitioner has not demonstrated a prima facie case for interim interdict.

Court Disposition

Interim interdict refused

Orders

  • Motion for interim interdict refused
  • Interlocutor pronounced refusing interim interdict