Ballast Plc v The Burrell Company (Construction Management) Ltd

CourtCourt of Session (Inner House - Extra Division)
Judgment Date17 December 2002
Date17 December 2002
Docket NumberNo 19


Lord Reed

No 19

Administrative law—Judicial review—Referral of building contract dispute to adjudicator—Jurisdiction of adjudicator—Whether decision a nullity—Housing Grants Construction and Regeneration Act 1996 (cap 53), sec 107, 1081—Scheme for Construction Contracts (Scotland) Regulations 1998 (SI 1998 No 687), pt 1

Contract—Building contract—Dispute referred to adjudicator—Whether adjudicator misconstrued his powers and failed to exercise his jurisdiction to determine dispute—Housing Grants Construction and Regeneration Act 1996 (cap 53), secs 107, 1081—Scheme for Construction Contracts (Scotland) Regulations 1998 (SI 1998/687), pt 11

Section 108 of the Housing Grants Construction and Regeneration Act 1996 confers a right on parties to a construction contract to refer disputes to an adjudicator. Section 107(1) provides inter alia that a dispute may be so referred only where the construction contract is in writing, and any agreement between the parties as to any matter is effective only if in writing. Section 107(2) sets out what constitutes an agreement in writing. Part 1 of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998 sets out the procedure for adjudication.

The parties had entered into a construction contract. There was a dispute as to the amount of the payment due. The petitioners referred it to an adjudicator. They sought inter alia directions as to the amounts due and an order for payment. The decision of the adjudicator was that the remedies sought were “not valid”, or “not applicable”.

The petitioners presented an application for judicial review of the decision. The parties accepted that the matter was governed by the relevant legislation, and that the proper procedure had been followed in referring it to an adjudicator. The Lord Ordinary found that the adjudicator had decided he could not grant the remedies sought because the parties had departed from the terms of the pre-printed contract. The adjudicator had made no reference to the terms of sec 107. He appeared to consider that he had no power to take into consideration the possibility that the parties might depart from the JCT conditions. The Lord Ordinary held that in those circumstances, his decision was a nullity, and reduced it. The respondents reclaimed. They argued that the adjudicator had not erred in law, and had determined the dispute. He had recognised that...

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8 cases
  • Csc Braehead Leisure Limited+capital And Regional (braehead) Limited V. Laing O'rourke Scotland Limited
    • United Kingdom
    • Court of Session
    • 19 August 2008
    ...Ballast plc v The Burrell Company (Construction Management) Ltd, reported in the Outer House at 2002 SLT 1039 and in the Inner House at 2003 SC 279. This case was authority for the proposition that the adjudicator must decide the dispute referred to him, and if he fails to exercise his juri......
  • Dickie & Moore Limited Against Ronald James Mcleish, Diane Mcleish And Catriona Watt
    • United Kingdom
    • Court of Session
    • 8 November 2019
    ...(Lord Reed’s decision in Ballast was reclaimed (appealed), but the Inner House refused the reclaiming motion and affirmed his decision: 2003 SC 279, 2003 SLT 137). Moreover, I think it highly unlikely that it was an aim of Parliament in enacting the 1996 Act, or the ministers in making the ......
  • Whyte And Mackay Limited V. Blyth & Blyth Consulting Engineers Limited
    • United Kingdom
    • Court of Session
    • 9 April 2013
    ...(paragraph 85); Pihl UK Ltd v Ramboll [2012] CSPH 139, (paragraphs 23/4); Ballast plc v Burrell Co (Construction Management) Ltd 2003 SC 279 (paragraphs 19/20); and Carillion Utility Services Ltd v SP Power Systems Ltd [2012] SLT 119, (paragraph 26). [9] Mr Wolffe then turned to his submiss......
  • Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd
    • United Kingdom
    • Court of Session (Inner House)
    • 24 March 2005
    ...plc v Burrell Co (Construction Management) LtdUNK2001 SLT 1039; 2001 SCLR 837 Ballast plc v Burrell Co (Construction Management) LtdSC2003 SC 279; 2003 SLT 137 Barnes and Elliot Ltd v Taylor Woodrow Holdings LtdUNK[2003] EWHC 3100; [2004] BLR 111 Blyth and Blyth's Tr v Kaye 1976 SLT 67 Gill......
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