Lord Woolman in the Outer House of the Court of Session refused to grant an interim interdict (the Scottish equivalent of an interim injunction) to prevent a party referring a dispute to adjudication.

Between June 2013 and March 2014, nine adjudications were started between T Clarke (Scotland) Ltd (the sub-contractor) and MMAXX Underfloor Heating Ltd (the sub-sub-contractor). The sub-sub-contractor started eight adjudications.  In five of them the adjudicator resigned, in addition to which there was one which the sub-sub-contractor dropped, one which he lost and one which he won but where he had “significantly exaggerated” his claim, which was reduced from some £185,000 to £17,000. One adjudication was started by the sub-contractor, in which he was unsuccessful, but where the adjudicator was critical of the sub-sub-contractor’s conduct and ordered the parties to pay the adjudicator’s fees in equal shares.

In March 2014, the sub-contractor applied for a grant of interim interdict to prevent the sub-sub-contractor from starting further adjudications.  It argued that the statutory right to adjudication did not extend to sham disputes and the sub-sub-contractor would not suffer any prejudice as it could still bring its claims in litigation.  Though Lord Woolman could understand the sub-contractor’s concern, he held that the court’s power to dismiss a claim should be exercised sparingly and said that it will “hardly ever do so”. He also held that despite the sub-sub-contractor’s behaviour, it had not acted unreasonably and oppressively; many of the adjudications failed for procedural reasons and there was success in one adjudication. The sub-contractor had failed to establish a prima facie case and did not pass the high threshold required. The balance of convenience tipped in favour of the sub-sub-contractor as it would be significantly prejudiced if it were prevented from referring a dispute to adjudication, and the sub-contractor had another remedy; it could raise an action seeking damages for abuse of process.