Babcock Marine (clyde) Limited Against Hs Barrier Coatings Limited
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2019] CSOH 110 |
| Docket Number | CA116/19 |
| Date | 27 December 2019 |
| Court | Court of Session |
| Published date | 27 December 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 110
CA116/19
OPINION OF LORD DOHERTY
in the cause
BABCOCK MARINE (CLYDE) LIMITED
Pursuer
against
HS BARRIER COATINGS LIMITED
Defender
Pursuer: Richardson QC; Morton Fraser LLP
Defender: Walker QC, Steel; Balfour + Manson LLP (for Hill Dickinson LLP )
27 December 2019
Introduction
[1] In this commercial action the pursuer seeks payment of sums which an adjudicator
has ordered the defender to pay to it. The defender resists payment on four grounds. Each
party has a preliminary plea to the relevancy of the other party’s averments. The matter
came before me for a debate which was conducted having regard to the pleadings, the
adjudicator’s decision, and the other documents forming part of the adjudication process.
2
The contract
[2] In December 2014 the pursuer contracted with the defender for the defender to carry
out re-preservation of shiplift docking cradles at HM Naval Base Clyde. The work was to
involve dismantling cradle components, removing legacy coating, preparing the metal
surface for painting, and painting and reassembling the components. The total contract
price was £800,000. The contract incorporated the NEC3 Engineering and Construction
Short Contract (June 2005) with bespoke Z clause amendments. It made provision
(clauses 60 to 63) for the price to be increased on the occurrence of specified compensation
events. It is a "construction contract" as defined by Section 104 of the Housing Grants,
Construction and Regeneration Act 1996 ("the 1996 Act"). Clause Z17 provided for any
dispute to be referred to adjudication in accordance with clauses 93.2, 93.3 and 93.4 of the
contract conditions.
[3] Clauses 90 and 92 of the contract conditions provide:
“90 Termination and reasons for termination
...
90.2 Either Party may terminate if the other Party has become insolvent or its
equivalent (Reason 1).
90.3 The Employer may terminate if the Employer has notified the Contractor that the
Contractor has defaulted in one of the following ways and the Contractor has not
stopped defaulting within two weeks of the notification.
Substantially failed to comply with this contract (Reason 2).
Substantially hindered the Employer (Reason 3).
Substantially broken a health or safety regulation (Reason 4).
The Employer may terminate for any other reason (Reason 5).
...
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...would have no difficulty in discerning what the adjudicator 14 had decided (Babcock Marine (Clyde) Limited v HS Barrier Coatings Limited [2019] CSOH 110 at paragraph 35). The defender’s reply [38] In reply, senior counsel for the defender highlighted that, in their reply submissions during ......