GEORGE MARTIN (BUILDERS) LTD v. SHAHEED JAMAL AND OTHERS [2000] ScotSC 17 (7th July, 2000)

GEORGE MARTIN (BUILDERS) LTD v. SHAHEED JAMAL AND OTHERS [2000] ScotSC 17 (7th July, 2000)

Defenders' preliminary pleas seeking a sist for arbitration, having been repelled for failure to lodge required notes under Ordinary Cause Rules, cannot be reinstated by amendment unless related to new matter. Defenders' inactivity and procedural omissions objectively constitute waiver of the contractual right to arbitration. The pursuers are entitled to succeed both on substantive and technical grounds.

Citation
[2000] ScotSC 17
Parties
Pursuer: George Martin (Builders) Ltd; First Defender: Shaheed Jamal; Second and Third Defenders: Second and third defenders
Jurisdiction
Scotland
Procedural Posture
Civil Action for Payment Under Contract / Interlocutor on Amendment and Preliminary Pleas
Outcome
Amendment of the record to reinstate arbitration pleas refused; leave to appeal granted ex proprio motu.
Legal Topics
Arbitration Clause, Waiver of Contractual Rights, Preliminary Pleas, Amendment of Pleadings
Civil Procedure Contract Law Arbitration Clause Waiver of Contractual Rights Preliminary Pleas Amendment of Pleadings

Case Brief

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Parties

George Martin (Builders) Ltd

Pursuer

Shaheed Jamal

First Defender

Second and third defenders

Second and Third Defenders

Procedural Posture

Civil Action for Payment Under Contract / Interlocutor on Amendment and Preliminary Pleas

Legal Issues

  1. 1 Whether defenders can reinstate preliminary pleas seeking a sist for arbitration after such pleas have been repelled for failure to lodge required notes under Ordinary Cause Rules
  2. 2 Whether the right to arbitration has been waived by defenders' conduct

Ratio Decidendi

Defenders' preliminary pleas seeking a sist for arbitration, having been repelled for failure to lodge required notes under Ordinary Cause Rules, cannot be reinstated by amendment unless related to new matter. Defenders' inactivity and procedural omissions objectively constitute waiver of the contractual right to arbitration. The pursuers are entitled to succeed both on substantive and technical grounds.

Court Disposition

Amendment of the record to reinstate arbitration pleas refused; leave to appeal granted ex proprio motu.

Orders

  • Allows amended closed record to be opened up and amended in terms of minutes of amendment, except for parts seeking to reinstate arbitration pleas.
  • Reserves all questions of expenses arising out of the debate and amendment procedure.