The Scottish Coal Company Ltd, Re Petition for Suspension and Interdict [2004] ScotCS 186 (29 July 2004)

The Scottish Coal Company Ltd, Re Petition for Suspension and Interdict [2004] ScotCS 186 (29 July 2004)

The right of retention is not excluded by the contract, either expressly or by necessary implication. The disputes procedure does not empower the adjudicator to determine issues of retention or set-off. Since the sums due are admitted and the only issue is retention, there is no dispute referable to the disputes procedure. The purported notice and appointment of the adjudicator are invalid.

Citation
[2004] ScotCS 186
Parties
Petitioner: The Scottish Coal Company Ltd; Respondent: First Respondents (Contractors); Respondent: Second Respondent (President of the Law Society of Scotland); Respondent: Third Respondent (Adjudicator)
Jurisdiction
Scotland
Judgment Date
29 July 2004
Procedural Posture
Petition for Suspension and Interdict / First Hearing (disposal at First Hearing)
Outcome
Petition granted
Legal Topics
Interpretation of Dispute Resolution Clauses, Right of Retention, Jurisdiction of Courts Vs. Adjudicator, Set Off and Compensation in Contracts
Contract Law Civil Procedure Interpretation of Dispute Resolution Clauses Right of Retention Jurisdiction of Courts Vs. Adjudicator Set Off and Compensation in Contracts

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Parties

The Scottish Coal Company Ltd

Petitioner

First Respondents (Contractors)

Respondent

Second Respondent (President of the Law Society of Scotland)

Respondent

Third Respondent (Adjudicator)

Respondent

Procedural Posture

Petition for Suspension and Interdict / First Hearing (disposal at First Hearing)

Legal Issues

  1. 1 Whether a dispute regarding the right of retention is referable to the disputes procedure under the contract
  2. 2 Whether the right of retention is excluded by the contract
  3. 3 Whether the appointment of an adjudicator was valid under the contract

Ratio Decidendi

The right of retention is not excluded by the contract, either expressly or by necessary implication. The disputes procedure does not empower the adjudicator to determine issues of retention or set-off. Since the sums due are admitted and the only issue is retention, there is no dispute referable to the disputes procedure. The purported notice and appointment of the adjudicator are invalid.

Court Disposition

Petition granted

Orders

  • Suspension of the purported notice by the first respondents dated 8 April 2003
  • Suspension of the appointment by the second respondent of the third respondent as adjudicator in terms of paragraph 2 of part 13 of the schedule to the Agreement