Adjudication, the battle of the forms and personal bar

In Specialist Insulation Ltd v Pro-Duct (Fife) Ltd [2012] CSOH 79 Lord Malcolm applied the rules of offer and acceptance to a case in which the standard terms of one party contained an adjudication clause, but the standard terms of the other party contained an arbitration clause. He held that the contract had been concluded on the latter terms so that there was no adjudication clause in the contract between the parties. This being the case, it followed that the adjudicator had no jurisdiction to decide the dispute which had been referred to him. Lord Malcolm also held that the party who maintained that the adjudicator had no jurisdiction was not personally barred from challenging the validity of the decision. Although it adopted different arguments before Lord Malcolm from those adopted before the adjudicator, it was held that it had made it ‘crystal clear’ that it did not accept the jurisdiction of the adjudicator and the fact that it initially adopted the wrong ground of challenge did not have the effect of conferring on the adjudicator a jurisdiction which he did not otherwise have.

The facts

The defender, a sub-contractor on a project at Edgbaston Cricket Ground, invited the pursuer to submit a quotation for the supply of ductwork. The pursuer duly sent in a quotation which stated that it was ‘subject to our standard terms and conditions of trading’. These terms, in addition to providing that the governing law was English law, provided as follows: