T Clarke (Scotland) Ltd v MMAXX Underfloor Heating Ltd (Scot, IH, CS - 23.10.2014)

The sub-contractor should not be granted an interim injunction to prevent the sub-sub-contractor from commencing any further adjudications against it in respect of the contract in question

Scotland, Inner House, Court of Session
Lords Eassie, Bracadale and Drummond Young


23rd October 2014

There were nine adjudications between the sub-contractor and the sub-sub-contractor in relation to one contract, eight of which were begun by the sub-sub-contractor. The sub-sub-contractor only succeeded in being awarded monies in one of the adjudications. The adjudicator resigned on the ground of lack of jurisdiction in most of the adjudications. The sub-contractor began proceedings for an injunction to prevent the sub-sub-contractor from beginning any more adjudications in relation to the contract. The sub-contractor averred that the sole director of the sub-sub-contractor had stated that he (i) would commence an adjudication (ii) had prior experience of obtaining money in such proceedings (ii) “would never give up” (iii) was a “maverick” who didn’t “play by the rules" (iv) would do whatever he needed to do, including suspending the works, to obtain monies by way of adjudication, including making use of misinformation and misdirection (v) did not care whether his claims were valid (vi) would simply use the adjudication process as often as required to force a settlement and (vii) misrepresented a number of key facts in one of the adjudications and in earlier correspondence.
In refusing to grant the injunction Lord Bracadale stated that circumstances which might be said to favour the grant of an injunction were that (i) The judge at first instance commented that the sub-sub-contractor’s alleged conduct and the statements made by its sole director gave cause for concern (ii) The sub-contractor’s averments in relation to the circumstances surrounding the third adjudication in particular were of a serious nature and (iii) The advocate for the sub-sub-contractor accepted that these averments might possibly have founded a basis for the court to intervene in relation to that adjudication. 
However, the judge was entitled to come to the view that the circumstances did not yield the clear inference that (i) The sub-sub-contractor had acted unreasonably and oppressively and (ii) The conduct of its sole director and the comments attributed to him were consistent with a robust approach.  The judge was right to express the views that (i) The key consideration was that the grant of an interim injunction would prohibit the sub-sub-contractor from initiating any further adjudication, no matter how genuine and well vouched (ii) The suggestion that the sub-sub-contractor could apply to the court for partial recall when it sought to initiate a further adjudication was not realistic and (iii) Such an application would be cumbersome, expensive and a difficult question for the court to determine.