Specialist Insulation Ltd v Pro-Duct (Fife) Ltd [2012] CSOH 79

The pursuer, Specialist, sought to enforce an adjudicator's decision. The defender, Pro-Duct, argued that the contract in question, a supply contract for ductwork, did not provide for adjudication. Both parties insisted that it was the other side's terms and conditions that should apply.

Throughout the adjudication process Pro-Duct had insisted that the adjudicator had no jurisdiction to act however its argument before the adjudicator had assumed its terms and conditions did apply. Pro-Duct asked the court to quash the decision on the ground of lack of jurisdiction.

Specialist submitted that the parties' agreement did include an agreement to refer any dispute under the contract to adjudication. It relied on a provision within a “Material Supply only Sub-contract Agreement” that accompanied Pro-Duct’s purchase order. It said that, Pro-Duct having presented a challenge on one basis in law in the adjudication, could not now admit the error and proceed upon a different and inconsistent legal basis to the same ultimate end result, namely an absence of jurisdiction

The parties had entered into an agreement. The question that the court had to answer was, “Did that agreement include the adjudication clause? Specialist argued for a "last shot" approach to the problem. The judge agreed with Dyson LJ that "It is not possible to lay down a general rule that will apply in all cases where there is a battle of the forms. It always depends on an assessment of what the parties must objectively be taken to have intended."

The judge decided that the parties' contract did not include an adjudication clause. Pro-Duct had challenged the adjudicator's jurisdiction from the outset and expressly reserved the position as to the legality of any award. In all the circumstances, and notwithstanding the different basis for the argument presented, it was his opinion that Pro-Duct was not barred from relying upon the absence of an adjudication clause in the parties' contract, nor had it waived any such challenge. There being no adjudication clause in the contract, and the adjudicator deriving no authority from any agreement or conduct by the parties thereafter, the submissions of waiver and personal bar on behalf of the pursuer fall to be rejected.

Considered; Jayaar Impex Ltd. v The Toaken Group Ltd. [1996] 2 Lloyds Rep 437 [15]; Tekdata Interconnections Limited v Amphenol Limited [2009] EWCA Civ 1209; Butler Machine Tool Co.; Uniroyal Ltd ; The Construction Centre Group Limited v Highland Council 2003 SC 464; Skanska Construction UK Limited, Petitioners; Paul v Henderson (1867) 5M 613; Ale Heavy Lift v MSD (Darlington) Limited [2006] EWHC 2080 (TCC); Bothma v Mayhaven Healthcare Limited [2006] EWHC 2601 (QB); Aedifice Partnership Limited v Shah [2010] EWHC 2106 (TCC); Pilon Limited v Breyer Group Limited [2010] EW HC 837 (TCC); Pegram Shopfitters Limited v Tally Weijl (UK) Limited [2003] EWCA Civ. 1750; Thomas-Fredrics (Construction) Limited v Keith Wilson [2003] EWCA Civ. 1494;Gatty v Maclaine 1921 SC (HL) 1; Armia Limited v Daejan Developments Limited 1979 SC (HL) 56

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