Barr Limited -v- Law Mining Limited
Case reference:
[2001] ScotCS 152
Friday, 15 June 2001
Key terms: Summary judgement - (Partial) Enforcement of adjudicator’s decision - Scope of jurisdiction of the adjudicator - Acting ultra vires - Meaning of “dispute” under the Scheme - more than one dispute - rescission
The case concerns the enforcement of two adjudicators’ decisions (Fleming and Ross action) which the pursuers sought to enforce by way of summary judgement (decree).
In respect of both decisions, the defence against enforcement relied upon the following three issues, all concerning the jurisdiction of the adjudicator:
1. Several separate disputes were illicitly decided in one decision, which is prohibited under the Scheme (“Several disputes issue”);
2. Given that the defenders had rescinded the contract, the adjudicators had no jurisdiction to make any award in respect of post-rescission work since the work was not carried out under the contract (“Rescission issue”); and
3. The adjudicators acted beyond their jurisdiction by awarding payment without addressing the question whether in absence of a certification, any sum was contractually due (“Certification issue”).
Lord MacFayden (partly) granted summary decree in respect of both adjudicators’ decisions based on the following considerations:
1. “Several disputes issue”: Both adjudicators did not act beyond their jurisdiction when they found that the whole matters constituted a single dispute. A realistic view had to be taken by the adjudicator. Here, the dispute was what sum was due and owing to the pursuers.
2. “Rescission issue”: The adjudicator in the Fleming action did act beyond his jurisdiction as far as the alleged “post-rescission” part of the dispute was concerned. He should have, on a provisional basis, determined the question of rescission. Consequently, any sum which flowed from this part of the decision could not be enforced. In contrast, in the Ross action the adjudicator duly determined this point and therefore acted within his jurisdiction.
3. “Certification issue”: The adjudicators did not act beyond their jurisdiction since it could not be said that they failed to answer the questions put before them. Albeit the decisions were unsatisfactory for not giving clear reasoning they still answered the right question and had, therefore, to be upheld.
In respect of both decisions, the defence against enforcement relied upon the following three issues, all concerning the jurisdiction of the adjudicator:
1. Several separate disputes were illicitly decided in one decision, which is prohibited under the Scheme (“Several disputes issue”);
2. Given that the defenders had rescinded the contract, the adjudicators had no jurisdiction to make any award in respect of post-rescission work since the work was not carried out under the contract (“Rescission issue”); and
3. The adjudicators acted beyond their jurisdiction by awarding payment without addressing the question whether in absence of a certification, any sum was contractually due (“Certification issue”).
Lord MacFayden (partly) granted summary decree in respect of both adjudicators’ decisions based on the following considerations:
1. “Several disputes issue”: Both adjudicators did not act beyond their jurisdiction when they found that the whole matters constituted a single dispute. A realistic view had to be taken by the adjudicator. Here, the dispute was what sum was due and owing to the pursuers.
2. “Rescission issue”: The adjudicator in the Fleming action did act beyond his jurisdiction as far as the alleged “post-rescission” part of the dispute was concerned. He should have, on a provisional basis, determined the question of rescission. Consequently, any sum which flowed from this part of the decision could not be enforced. In contrast, in the Ross action the adjudicator duly determined this point and therefore acted within his jurisdiction.
3. “Certification issue”: The adjudicators did not act beyond their jurisdiction since it could not be said that they failed to answer the questions put before them. Albeit the decisions were unsatisfactory for not giving clear reasoning they still answered the right question and had, therefore, to be upheld.