Petition of Edinburgh Royal Joint Venture
Friday, 2 August 2002
Key terms: Suspension and an Order ad factum praestandum - Summary Enforcement - Amendments to ORSA Rules
A dispute had arisen that had been referred to adjudication. The Adjudicator had issued a decision, but the Edinburgh Royal Joint Venture (ERJV) did not pay, and as a result Broderick Structures Limited sought summary enforcement of the decision.
The applicable rules were the ORSA Adjudication Rules 1998, but subject to deletions and amendments. One of those amendments ("f") stated that no party shall make any application whatsoever to a competent court in relation to the conduct of the adjudication or the decision of the Adjudicator until completion of the last phase of the works or termination of the sub-contract, and until the prior written consent of both sub-contractor and contractor had been obtained. Another provision stated that the applicable law was that of Scotland and the parties irrevocably submitted to the non-exclusive jurisdiction of the Courts of Session, Scotland. Further every decision of the Adjudicator was to be implemented without delay and the parties "shall be entitled to summary enforcement" of an Adjudicator's decision regardless of whether it was subject to any challenge or review.
The petitioner, ERJV, sought to argue that the terms of ("f") meant that all disputes were to be postponed until after conclusion of the contract, such that they could all be raised at one time. Coutis QC considered that this position was unsound and could not be sustained.
The Respondents were not seeking to challenge the decision of the Adjudicator, but merely to enforce their contractual rights. A distinction was made between an application to the Court after completion of the work, and summary enforcement of a decision made during the work. Even if there was a balance of convenience argument between the clauses then the Judge favoured payment. Finally, ERJV's failure to consent to the registration of the decision in the Books of Council and Session was merely an attempt to obtain an illegitimate deferral of payment of the Adjudicator's decision.
The applicable rules were the ORSA Adjudication Rules 1998, but subject to deletions and amendments. One of those amendments ("f") stated that no party shall make any application whatsoever to a competent court in relation to the conduct of the adjudication or the decision of the Adjudicator until completion of the last phase of the works or termination of the sub-contract, and until the prior written consent of both sub-contractor and contractor had been obtained. Another provision stated that the applicable law was that of Scotland and the parties irrevocably submitted to the non-exclusive jurisdiction of the Courts of Session, Scotland. Further every decision of the Adjudicator was to be implemented without delay and the parties "shall be entitled to summary enforcement" of an Adjudicator's decision regardless of whether it was subject to any challenge or review.
The petitioner, ERJV, sought to argue that the terms of ("f") meant that all disputes were to be postponed until after conclusion of the contract, such that they could all be raised at one time. Coutis QC considered that this position was unsound and could not be sustained.
The Respondents were not seeking to challenge the decision of the Adjudicator, but merely to enforce their contractual rights. A distinction was made between an application to the Court after completion of the work, and summary enforcement of a decision made during the work. Even if there was a balance of convenience argument between the clauses then the Judge favoured payment. Finally, ERJV's failure to consent to the registration of the decision in the Books of Council and Session was merely an attempt to obtain an illegitimate deferral of payment of the Adjudicator's decision.