GREATER GLASGOW HEALTH BOARD AGAINST MULTIPLEX CONSTRUCTION EUROPE LTD AND OTHERS [2021] ScotCS CSOH_115 (05 November 2021)

GREATER GLASGOW HEALTH BOARD AGAINST MULTIPLEX CONSTRUCTION EUROPE LTD AND OTHERS [2021] ScotCS CSOH_115 (05 November 2021)

The action is not incompetent; the contractual bar created by clause W2 of the NEC3 contracts prevents the court from entertaining the dispute until adjudication has concluded, but does not render the action a nullity. The appropriate course is to sist the action pending adjudication, not to dismiss.

Citation
[2021] ScotCS CSOH_115
Parties
Pursuer: Greater Glasgow Health Board; First Defender: Multiplex Construction Europe Limited; Second Defender: BPY Holdings LP and BPY Holdings GP Limited (previously known as Brookfield Europe GP Limited); Third Defender: Currie & Brown UK Limited; Fourth Defender: Capita Property and Infrastructure Limited
Jurisdiction
Scotland
Judgment Date
05 November 2021
Procedural Posture
Commercial Action / Interlocutory Decision on Competency and Contractual Bar
Outcome
Action sisted pending adjudication; pleas to incompetency and dismissal repelled.
Legal Topics
Adjudication Clauses, Contractual Bar, Joint and Several Liability, Prescription, Competency of Proceedings
Construction Law Contract Law Civil Procedure Adjudication Clauses Contractual Bar Joint and Several Liability Prescription Competency of Proceedings

Case Brief

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Parties

Greater Glasgow Health Board

Pursuer

Multiplex Construction Europe Limited

First Defender

BPY Holdings LP and BPY Holdings GP Limited (previously known as Brookfield Europe GP Limited)

Second Defender

Currie & Brown UK Limited

Third Defender

Capita Property and Infrastructure Limited

Fourth Defender

Procedural Posture

Commercial Action / Interlocutory Decision on Competency and Contractual Bar

Legal Issues

  1. 1 Whether the dispute falls within the scope of the adjudication clause (NEC3 clause W2)
  2. 2 Whether the action is incompetent due to failure to refer to adjudication
  3. 3 Whether the action should be sisted or dismissed

Ratio Decidendi

The action is not incompetent; the contractual bar created by clause W2 of the NEC3 contracts prevents the court from entertaining the dispute until adjudication has concluded, but does not render the action a nullity. The appropriate course is to sist the action pending adjudication, not to dismiss.

Court Disposition

Action sisted pending adjudication; pleas to incompetency and dismissal repelled.

Orders

  • Pleas in law for incompetency repelled
  • Pleas for dismissal on contractual bar repelled