Chirex in September 1998 engaged Homer Burgess to carry out works to a site in Annan Dumfrieshire. Disputes arose that were referred to adjudication. The defender, Chirex, was ordered by the Adjudicator to pay the sum of £284,046.98 on 11 April 1999.

The pursuers argued that the Adjudicator lacked jurisdiction because the word “plant” in section 105(2)(c) included work that was being carried out at their site, which probably fell within the exception of section 105(2)(c)(ii). A substantial proportion of the decision related to that plant.

Lord MacFayden held that guidance given in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 was applicable to adjudication. It was therefore appropriate to review the adjudicator’s “decision” in respect of the term plant.

In respect of the term “plant” in section 105 Lord MacFayden held that it should be given its ordinary meaning. As the pipework formed the links between the various items of machinery and equipment in the pharmaceutical process the judge was of the opinion that the pipework was

“clearly part of the plant being assembled or installed on the defender’s site. Without such pipework, individual pieces of machinery or equipment would be unable to operate. The pipework is in real sense part of the apparatus which, once it was installed, the defendants were going to use in order to carry out their business of manufacturing pharmaceuticals.”

The pipework fell within the scope of the exception of section 105(2)(c)(ii) and was therefore not a construction operation.