THE FRASERBURGH HARBOUR COMMISSIONERS AGAINST McLAUGHLIN & HARVEY LTD [2021] ScotCS CSOH_8 (26 January 2021)

THE FRASERBURGH HARBOUR COMMISSIONERS AGAINST McLAUGHLIN & HARVEY LTD [2021] ScotCS CSOH_8 (26 January 2021)

Clause W2.4 of the NEC3 Engineering and Construction Contract operates as a contractual bar, requiring that any dispute must first be referred to adjudication before it can be brought before a tribunal (arbitration or court). The pursuer is contractually barred from bringing the action before the court without prior adjudication, and the action must be dismissed as there is no ancillary purpose for the court to entertain the suit.

Citation
[2021] ScotCS CSOH_8
Parties
Pursuer: The Fraserburgh Harbour Commissioners; Defender: McLaughlin & Harvey Limited
Jurisdiction
Scotland
Judgment Date
26 January 2021
Procedural Posture
Commercial Action / Debate on Preliminary Plea
Outcome
action dismissed
Legal Topics
Contractual Dispute Resolution, Adjudication, Arbitration, Jurisdiction, Contractual Bar
Construction Law Contract Law Civil Procedure Contractual Dispute Resolution Adjudication Arbitration Jurisdiction Contractual Bar

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Parties

The Fraserburgh Harbour Commissioners

Pursuer

McLaughlin & Harvey Limited

Defender

Procedural Posture

Commercial Action / Debate on Preliminary Plea

Legal Issues

  1. 1 Does clause W2.4 of the NEC3 Engineering and Construction Contract operate as a contractual bar to court or arbitration proceedings unless the dispute is first referred to adjudication?
  2. 2 Does the clause wholly oust the jurisdiction of the Scottish courts?
  3. 3 Is the pursuer entitled to bring an action before the court without prior adjudication?

Ratio Decidendi

Clause W2.4 of the NEC3 Engineering and Construction Contract operates as a contractual bar, requiring that any dispute must first be referred to adjudication before it can be brought before a tribunal (arbitration or court). The pursuer is contractually barred from bringing the action before the court without prior adjudication, and the action must be dismissed as there is no ancillary purpose for the court to entertain the suit.

Court Disposition

action dismissed

Orders

  • Defender's first plea of contractual bar sustained
  • Action put out by order; motion for dismissal reserved