Fab-Tek Engineering Ltd v Carillion Construction Ltd

The arrestments obtained by the pursuers in this Scottish procedural law case should be recalled

Scotland, Sheriff of Dunfermline
March 2002

This case concerned Scottish procedural law.


It was an action of payment arising from a building contract between the parties whereby the pursuers were instructed by the defenders to manufacture and install equipment at a leisure development. During the dependence of the action, the pursuers obtained warrant and served arrestments which the defenders sought to have recalled.


The Sheriff was not prepared that the arrestments on the dependence can be granted quite properly on the basis of the Ordinary Cause Rules 3.3, 3.5, 5.1.1 and 5.1.3. The Sheriff disagreed with the pursuers’ interpretation of the effect of Section 6(1) of the Human Rights 1998 Act upon this remedy. According to the pursuers sub-section (2)(a) applied since the Ordinary Cause Rules were expressed in a mandatory form and so the authority (Sheriff Clerk) could not have acted differently. It followed then according to him that Section 6(1) had not been breached.


The Sheriff preferred the interpretation that the relevant Ordinary Cause Rules are permissive and the wording founded upon meant that he could decline warrant where no cause had been shown for granting it. The Sheriff preferred the view that sub-section 2(a) did not apply since the Ordinary Cause Rules are permissive and the Court could have acted differently, namely by hearing the pursuer's justification for obtaining an arrestment on the dependence thus complying with Section 6(1) of the 1998 Act.


All these factors drove the Sheriff to the inescapable conclusion that the same criteria which were relied upon by Lord Drummond Young in Karl Construction Limited in relation to inhibitions are equally compelling in relation to arrestments on the dependence. The Sheriff considered that the defender's argument was a powerful one and that it was therefore appropriate that the arrestments on the dependence complained should recall be recalled.


The Sheriff concluded by stating that even if the motion had failed, he would have been in agreement that any fresh motion by the defenders for recall of the arrestments on the dependence (say on the grounds that they were nimious and oppressive) would have to be considered in the light of Section 6(1) of the 1998 Act and that it was likely that he would conclude that the onus was on the pursuers to justify the propriety of the warrant.