Gt Equitix Inverness Limited Against Board Of Management Of Inverness College
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2019] CSOH 46 |
| Date | 18 June 2019 |
| Docket Number | CA35/19 |
| Court | Court of Session |
| Published date | 18 June 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 46
CA35/19
OPINION OF LADY WOLFFE
In the cause
GT EQUITIX INVERNESS LIMITED
Pursuer
against
BOARD OF MANAGEMENT OF INVERNESS COLLEGE
Defender
Pursuer: Moynihan QC; Burness Paull LLP
Defender: Walker QC; Brodies LLP
18 June 2019
Introduction
Nature of action
[1] The pursuer seeks enforcement of an adjudicator’s award in its favour dated 20 January
2019 (“the Decision)” issued by Dr Robert Hunter (“the Adjudicator”) following an adjudication
between the parties (“the second adjudication”). The defender resists this and seeks reduction
of the Decision ope exceptionis. While the Decision was in the sum of £828,091, the pursuer seeks
decree for payment in the sum of £499,014.68. This is to reflect a sum said to have been paid by
the defender.
2
Issues
[2] The defender’s grounds of challenge to enforcement of the Decision are as follows:
(1) Issue 1: Jurisdictional challenge: the defender argued that the appointment
of the Adjudicator was invalid either
(i) because the pursuer circumvented the procedure under the parties’
contract (“the Project Agreement”, as after defined) by unilaterally
inviting the panel member who would have been the adjudicator on
the panel of adjudicators next due to be appointed to retire (“the
interference argument”), or
(ii) because the pursuer failed to follow the mandatory procedure in the
Project Agreement for referral of a dispute to adjudication (“the
prematurity argument”).
(2) Issue 2: Failure to exhaust jurisdiction: separately, the defender argued that
the Adjudicator adopted an incorrect interpretation of the Project Agreement.
As a consequence, the Adjudicator adopted too restrictive an approach and
he failed to consider a significant line of defence (essentially one of set-off of
sums claimed in respect of certain EDF invoices). This constituted a failure to
exhaust his jurisdiction. While this was also presented in the alternative as a
breach of natural justice, because the Adjudicator was said to have applied an
argument not canvassed with the parties, this alternative formulation was not
advanced (or was not advanced with any enthusiasm) at Debate. I shall refer
to this as “the failure to exhaust jurisdiction argument”.
The Decision fell to be reduced ope exceptionis if one of these grounds was
established.
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Appeal By Siteman Painting And Decorating Services Limited Against Simply Construct (uk) Limited
...onus is on that party to prove its entitlement to refuse payment (GT Equitix Inverness Ltd v 6 Board of Management of Inverness College [2019] CSOH 46 at [35]). There is an obligation on any pleader to make admissions where there is no relevant defence to a claim. For the reasons discussed,......