Mowlem entered into a contract with Scrabster (the Employer) for a new break water and associated works as part of a new ferry terminal. The contract was based on the ICE 5th Editions, together with amendments including the HGCRA March 1998 ICE amendment and the ICE Scottish arbitration amendment (April 2001). Clause 66(9)(b) as amended by the Scottish arbitration provision provided:

“Where an Adjudicator has given a decision under Clause 66(6) in respect of the particular dispute, the Notice of Arbitration must be served within three months of the giving of the Decision otherwise it shall be final as well as binding.”

The Adjudicator issued a Decision, and a Notice of Arbitration was then issued within the three month period. The Employer sought a declaration that the Adjudicator’s Decision was final and binding because the Notice of Arbitration failed to comply with Article 1 of the Scottish Arbitration Code. Article 1 required the notice to contain amongst other things, details about the nature of the claim, the sum claimed, the pursuers defence and the remedy and relief sought. The Employer argued that the Notice was not sufficiently detailed.

Lord Clarke viewed the authorities, which made it clear that parties must precisely comply with contractually and statutorily prescribed provisions. However, the Appendix to the Scottish Arbitration Code provided a precedent Notice of Arbitration, and as the actual notice complied with that, Lord Clarke was of the opinion that the Notice of Arbitration served by Mowlem was valid and that the Adjudicator’s Decision had therefore not become final and binding.