Bn Rendering Limited Against Everwarm Limited
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2018] CSOH 45 |
| Date | 27 April 2018 |
| Docket Number | CA120/17 |
| Court | Court of Session |
| Published date | 27 April 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 45
CA120/17
OPINION OF LORD BANNATYNE
In the cause
BN RENDERING LTD
Pursuer
against
EVERWARM LTD
Defender
Pursuer: Massaro; DAC Beachcroft Scotland LLP
Defender: Tariq; Harper Macleod LLP
27 April 2018
Introduction
[1] This matter came before me in the commercial court for debate in terms of the
defender’s plea of no jurisdiction.
Background
[2] On or around 23 September 2016, the pursuer and defender entered into a contract
for the provision by the pursuer to the defender of labour for external wall insulation works
at several sites in Kirkcaldy. The subcontract order from the defender to the pursuer bearing
2
the reference EWI5127/0003 and the defender’s subcontract terms and conditions enclosed
with the said subcontract order together formed the parties’ contract (“the contract”).
[3] The pursuer and defender are in dispute about the pursuer’s entitlement to further
sums purportedly due under the contract. The pursuer accordingly referred the question of
whether it was entitled to further payments under the contract and, if so, how much, to
adjudication. On 16 November 2017 the adjudicator issued her decision. She determined
that the pursuer was entitled to a further payment of £141,598.20 plus VAT. The pursuer
seeks to enforce the adjudicator’s decision in the present action. The ground of jurisdiction
advanced on the pursuer’s half is the defender’s domicile.
[4] The relevant provisions in respect to the issue of no jurisdiction are contained in the
subcontract terms and conditions and are these:
“Clause 8 (Settlement of Disputes)
8.1 If any dispute or difference shall arise between the parties at any time in
connection with this agreement then either party may refer such dispute or
difference to Adjudication and the Scheme for Construction Contracts (England and
Wales) Regulations 1998 (as amended) shall apply ...
8.3 The decision of the Adjudicator shall be binding on the parties until the
dispute or difference is finally determined by legal proceedings, Arbitration (if
agreed) or by an agreement in writing between the parties made after the decision of
the Adjudicator.
8.4 The parties shall without prejudice to their other rights under this agreement
comply with the decision of the Adjudicator and shall ensure that the decision of the
Adjudicator is given effect.
8.5 If either party does not comply with the decision of the Adjudicator or give
effect to such decision the other party shall be entitled to take court proceedings to
secure such compliance pending any final determination of the dispute or difference.
Clause 14 (Governing Law and Jurisdiction)
14 Subject to any specific agreement to the contrary contained in the Order, any
contract governed by these terms and conditions shall be governed by and construed
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