Commercial judge moves continually sisted dispute to ordinary roll after motion to dismiss by defender

Commercial judge moves continually sisted dispute to ordinary roll after motion to dismiss by defender

A commercial judge has refused to dismiss a commercial action that was sisted pending the outcome of an English arbitration process, and instead granted a fresh sist and moved it to the ordinary roll.

Briggs Marine Contractors Ltd raised the action against Bakkafrost Scotland Ltd in September 2022, prior to the commencement of arbitration seated in England. It was common ground between the parties that resolution of the arbitration proceedings within the next year was unlikely, and the defender therefore moved to dismiss the action.

The case was heard by Lord Braid in the Outer House of the Court of Session. E Grieve, solicitor advocate, appeared for the pursuer and Manson, advocate, for the defender.

Pointless expense

The action arose from a dispute between the parties concerning a contract governed by English law, in which an arbitration clause applied to the matters in dispute. Following a debate, the commercial action before the Outer House was first sisted for three months in February 2023. Arbitration proceedings began in England afterwards and were described as proceeding at “what appears to the outsider to be a somewhat leisurely fashion”.

Following the initial sist, the action was sisted for further periods of six and four months respectively, with the most recent sist having expired in March 2024. When the case called again on 15 March 2024, the defender moved to dismiss the action on the ground that it served no discernible purpose.

It was submitted that the continued existence of the action was causing the defender prejudice, as it had to keep checking in with the court and incurring pointless expense. While it could not be said that there was no conceivable circumstance in which the action might serve some purpose or other, it was for the pursuer to articulate what that purpose might be. The position would be different had the arbitration been seated in Scotland, but in this case the jurisdiction of the court had been ousted.

For the pursuer it was accepted that a long sist was anathema to the commercial court, and the solicitor advocate invited the court to move the action to the ordinary roll. When asked what advantage there was to the action remaining in court, she replied that further claims may arise out of the arbitration that would not be covered by the arbitration clause, and it may be useful in an enforcement context.

Vagary of litigation

In his decision, Lord Braid began: “The starting point is to note that sists in the commercial court should be the exception rather than the rule. They are at odds with the oft-and-increasingly-overlooked premise that the commercial court exists to provide parties with a speedy resolution, utilising a bespoke procedure, to any dispute of a commercial nature.”

He continued: “There will be situations where a sist is inevitable - in the present case, by virtue of section 10 of the Arbitration (Scotland) Act 2010, it was mandatory - but they should be few and far between; and when a sist is granted, the court, in exercise of its case management powers, will necessarily keep it under review. It is not a productive use of the court’s time or resource - both judicial and non-judicial - to be constantly checking on the progress of an arbitration, particularly one which is proceeding slowly.”

On whether an indefinite sist was possible, Lord Braid said: “If the arbitration were still limping along after 10 years, and neither party was showing any enthusiasm in progressing it, I consider that at that point the court would be entitled to dismiss the action, effectively for want of prosecution, or for unconscionable delay. That said, the inevitable corollary of the section 10 requirement to sist an action for an alternative dispute process to take place, is that the action should remain sisted pending the outcome of that process.”

However, he added: “Despite the fact that the pursuer has been unable to articulate what advantage it would derive from the current action being kept alive, and that it is difficult to see any benefit to the pursuer in the present action remaining sisted, I am unable to say that there has been such delay that the action should now be dismissed. For now, the pursuer is entitled to keep the action in court should it wish to do so; that both parties must incur some expense in keeping the court up-dated is simply a vagary of litigation.”

Lord Braid concluded: “That all said, I do not consider that it is appropriate for the action to continue on the commercial roll. Neither party wishes the speedy and efficient determination of the action, and, as already noted, it is taking up valuable resource.”

Having regard to the likely minimum future life of the arbitration, Lord Braid therefore withdrew the action from the commercial roll, appointed it to proceed as an ordinary action, and further sisted it for a period of 1 year.

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