Greater Glasgow Health Board v Multiplex and Others (2021)

Published 29 September 2022

This case is a litigation coming out of the alleged defects in the construction of the Queen Elizabeth University Hospital in Glasgow. The pursuer’s contracts with certain of the project team defenders provided that any dispute arising thereunder was to be referred to and decided by an adjudicator and that no dispute was to be referred to the court unless it had first been so.  None of the issues in the court action had been referred to adjudication.  The defenders said the court action was incompetent and should be dismissed.  The pursuer said it ought to be allowed to proceed as, on a proper construction of the contracts, due to complexity and multiplicity of parties, the dispute was not one that the respective parties intended would be referred to adjudication. In the alternative, the pursuer sought a sist for adjudication.  The court did not accept the pursuers’ argument.  However, it did not consider that the action was incompetent, rather, by virtue of the contract, unless waived, the dispute can simply not be entertained by a court until the adjudication process has concluded. The usual course was to sist the action until that time, which the court did.

Comment: - In simple terms, the underlying argument was effectively that (i) a claim could not be brought before the court until a mandatory adjudication provision had been complied with and (ii) that, if it was, such a claim would be dismissed without interrupting the prescriptive clock. The practical effects of this would have been profound (both in this case and for the industry generally), potentially time barring live claims and/or necessitating superficial adjudications prior to protective proceedings being raised. Ultimately the Court accepted the common-sense position that, if a mandatory adjudication provision is insisted on, proceedings can simply be sisted to allow such.