Vaughan Engineering Limited v Hinkins & Frewin Limited 1

United Kingdom

In Scotland, when seeking to defend an action for the enforcement of an adjudicator's decision, the Defendant simply needed to plead in defence that the adjudicator's decision was invalid.

Lord Clarke (Outer House) Court of Session

3 March 2003

This was an action for summary judgment for enforcement of an adjudicator's decision dated 22 October 2002.

The parties had entered into a DOM/1 Contract 1980 Edition with Amendments, under which VE agreed to execute certain mechanical works in connection with the modernisation of research laboratories for the University of Reading. As the contract did not contain adjudication provisions, the Scheme for Construction Contracts applied.

An adjudication had taken place and VE sought to enforce the Adjudicator's decision. H&F had refused to pay on the basis that the adjudicator had failed to exhaust his jurisdiction by failing to take into account a set off claim placed before him by H&F. H&F requested a sist (stay of proceedings) in order that they could commence proceedings for judicial review.

VE's position was that H&F could, and should, simply seek to have the decision set aside, judicial review was not necessary.

The issue before the Court was how, in Scots' law, procedurally decisions of an adjudicator might be challenged by Defendants against whom actions for their enforcement are taken. Lord Clarke felt that this raised questions in relation to the means by which the validity of any kind of act or decision that emanated from a personal body that is subject to the supervisory jurisdiction of the Court of Session might be challenged, including adjudicators.

Lord Clarke did not take the view, by analogy to challenges to decisions of arbitrators, that the challenge to such decisions as being ultra-vires could only be made by way of judicial review in the Court of Session or involve an application to the Supervisory Jurisdiction to the Court of Session.

Rather, in Lord Clarke's view, H&F simply needed to plead in defence to the enforcement action, the invalidity of the adjudicator's decision. Lord Clarke did not support the position that H&F could only defend itself by way of proceedings for judicial review to have the decisions reduced.

Accordingly, he rejected H&F's request to invoke the supervisory jurisdiction of the Court of Session to grant a sist in order to commence proceedings for judicial review. In relation to whether separate proceedings should be commenced on the question of the validity of the adjudicator's decision the parties were left to provide further submissions to the Court.

In Scotland, when seeking to defend an action for the enforcement of an adjudicator's decision, the Defendant simply needed to plead in defence that the adjudicator's decision was invalid.

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