RECLAIMING MOTION BY THE FRASERBURGH HARBOUR COMMISSIONERS AGAINST McLAUGHLIN & HARVEY LTD [2021] ScotCS CSIH_58 (06 October 2021)

RECLAIMING MOTION BY THE FRASERBURGH HARBOUR COMMISSIONERS AGAINST McLAUGHLIN & HARVEY LTD [2021] ScotCS CSIH_58 (06 October 2021)

The contract does not exclude the right to raise court proceedings; it only requires adjudication and notice of dissatisfaction before arbitration. The court's jurisdiction is not ousted, and the proper course is to sist the action pending completion of the ADR process, not to dismiss it. Section 10 of the Arbitration (Scotland) Act 2010 mandates a sist where an arbitration agreement applies.

Citation
[2021] ScotCS CSIH_58
Parties
Pursuers and Reclaimers: The Fraserburgh Harbour Commissioners; Defenders and Respondents: McLaughlin & Harvey Limited
Jurisdiction
Scotland
Judgment Date
06 October 2021
Procedural Posture
Reclaiming Motion (appeal) in Commercial Action for Damages / Appeal Against Dismissal at First Instance; Decision on Whether Action Is Contractually Barred or Should Be Sisted Pending ADR
Outcome
Reclaiming motion allowed; interlocutor of 3 February 2021 recalled; action sisted pending ADR/arbitration.
Legal Topics
Alternative Dispute Resolution, Arbitration Clauses, Adjudication, Jurisdiction of Courts, Prescription (limitation), Sist of Proceedings
Contract Law Civil Procedure Arbitration Alternative Dispute Resolution Arbitration Clauses Adjudication Jurisdiction of Courts Prescription (limitation) +1 more

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Parties

The Fraserburgh Harbour Commissioners

Pursuers and Reclaimers

McLaughlin & Harvey Limited

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) in Commercial Action for Damages / Appeal Against Dismissal at First Instance; Decision on Whether Action Is Contractually Barred or Should Be Sisted Pending ADR

Legal Issues

  1. 1 Whether the pursuers are contractually barred from raising court proceedings prior to adjudication/arbitration under the contract
  2. 2 Whether the court must sist (stay) the action pending ADR/arbitration under section 10 of the Arbitration (Scotland) Act 2010
  3. 3 Whether raising the action is competent and serves a legal purpose (e.g., interrupting prescription)

Ratio Decidendi

The contract does not exclude the right to raise court proceedings; it only requires adjudication and notice of dissatisfaction before arbitration. The court's jurisdiction is not ousted, and the proper course is to sist the action pending completion of the ADR process, not to dismiss it. Section 10 of the Arbitration (Scotland) Act 2010 mandates a sist where an arbitration agreement applies.

Court Disposition

Reclaiming motion allowed; interlocutor of 3 February 2021 recalled; action sisted pending ADR/arbitration.

Orders

  • Recall of commercial judge's interlocutor of 3 February 2021
  • Sist of action pending outcome of ADR/arbitration processes