In October 2004, the parties entered into a contract for internal and external refurbishment works to be carried out by the pursuer. The contractor was identified as 'John Stirling, M&S Contracts' in the JCT MW98 agreement. In November 2004, the company was incorporated as 'M&S Contracts Limited' with John Stirling as the sole director of the company. The works were duly carried out and invoices paid. Then in July 2005, Certificate for Payment No 6, referring to the contractor as "M&S Contracts", was not paid and became overdue. The pursuer subsequently served a Notice of Adjudication in the names of "M&S Contracts Limited v Westminster Properties Scotland Ltd". The defenders objected to the Notice as 'M&S Contracts Limited' had been incorporated after the contract was concluded.

This adjudication was then abandoned and a second one was commenced in the name of the pursuer on essentially the same terms. Westminster disputed the jurisdiction on the grounds that no dispute had formed between the parties. This was rejected by the adjudicator and an award was issued in favour of the pursuer in respect of Certificate for Payment No 6 totalling £57,184.31.

In the enforcement proceedings, the court determined that the words 'dispute' and 'difference' should be given their ordinary meaning and the critical question was whether a 'dispute or difference' crystallised before the notice of adjudication was served. Lord Drummond Young first stated that "any disagreement that emerges as to the parties' respective rights and obligation should appear in writing. It follows that there mere failure to pay is not enough to give rise to dispute or difference". However, on the facts of the case, he found that a dispute did exist prior to the start of the adjudication as Westminster failed to give any reason for their non-payment and disputed that the sum was due.

When Lord Drummond Young considered the interactions between the parties, he found that the company "M&S Contract Limited" was acting as an ad hoc agent for the contracting party. In normal commercial practise where this situation is found, it is often the case that correspondence and information is transferred in the name of the company rather than in the name of the individual. This allows the contracting party to remain in place as regards to contractual rights and obligations. However, the court pointed out one important limitation:

"In any subsequent adjudication or court proceedings, I am of opinion that an analysis in terms of ad hoc agency is not an appropriate inference. When litigation or adjudication is threatened, the communings between the parties take on a formal aspect, and precision is required in the name of the party making the claim."