Petition of British Waterways Board

Under Scottish court procedure the employer's petition for judicial review based on its contention that there was no 'dispute' which could properly be referred to adjudication failed because whilst it was arguable that there was no dispute, the balance of convenience favoured the adjudication going ahead
This case concerned Scottish court procedure. The employer brought a petition for judicial review. The main issue for determination was whether a dispute existed between the parties which could properly be referred to adjudication at the time of the hearing of the petition. The employer maintained that there was no ?dispute? within the meaning of section 108 of the Construction Act 1996 having regard to the terms of the contract. It was common ground that the approach to be adopted by the court where the parties sought interim orders in a petition for judicial review. This was that the court had to be satisfied before granting any such interim orders that there was a case to try. If the employer got over that hurdle, the parties then had to make representations about where the balance of convenience lay and the court had to make a decision in this connection. Lord McCluskey held that the employer had got over the first hurdle in that there was indeed an issue to be tried as to whether there was a ?dispute? arising out of the contract. However, the judge went on to hold that the balance of convenience nevertheless favoured the refusal of the motions placed before the court. Both the Construction Act and contractual dispute resolution procedure envisaged the desirability of proceeding to a speedy resolution of matters in issue without delay. The parties in the instant case had had some months to investigate and consider their respective positions and to research matters. The extra cost of putting these matters in an appropriate form before an adjudicator was unlikely to be very great. In addition it was clear that the parties were unlikely to make use of any additional period of time involved by the petition going ahead given that an agreement had eluded them over the months preceding the issue of the petition. Advice Note In Scotland notwithstanding that it is arguable that there is no ?dispute? capable of being properly referred to adjudication, the courts will not grant an injunction to prevent the referral where the balance of convenience militates against such a referral.