The standard NEC dispute resolution provision which provides for disputes to be decided firstly by adjudication and then by a specified tribunal have been under closescrutiny by the Scottish appeal court in the case of The Fraserburgh Harbour Commissioners v McLaughlin & Harvey Limited, [2021] CSIH 58.
The pursuer raised court proceedings for damages in respect of certain defects in the works for the primary purpose of interrupting prescription (i.e. time bar) prior to any adjudication proceedings being commenced. There was no dispute between the parties that the defender was entitled to insist on its contractual right to have the merits of the matter determined by adjudication, and then arbitration, rather than the courts. However, the parties were in dispute as to what should happen to the court proceedings in the meantime: should they be sisted (i.e. paused) or dismissed?
You can read Chris Mackay and Andrew Little’s blog to find out why the court concluded it would sist the current court action pending the outcome of an adjudication and arbitration determining the merits of the dispute.
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