Pursuant to a Deed of Appointment between the Pursuers (Sim Group) and the second defendant (Douglas Dickson) in respect of the appointment of the first defendant (Neil Jack) as Arbitrator there had been a dispute which had been referred to arbitration. The Arbitrator had given his final award in respect of that dispute. However, the second defender contended that his counterclaim had not been fully dealt with and purported to commence further arbitration proceedings in order to pursue that claim. The first defender reached the view that the Arbitrator was not functus officio and could therefore hear an Arbitrator upon the second defender’s claim. In these proceedings the pursuer sought interdict (an injunction) against the Arbitrator for proceeding further with the purported arbitration proceedings.

An issue arose as to whether the pursuer should be making a claim for judicial review by requesting the court to use its supervisory jurisdiction under the terms of rule of court 58. The pursuer maintained that an ordinary petition for an injunction was the correct way to proceed.

Lord Clarke compared the approach of judicial review, which should be used for reviewing the decision of an adjudicator against an ordinary petition for an injunction. He also compared this position to the adjudication of Naylor v Green Acres Curling Limited (2001) SLT 1092. In that case there was an argument that the first adjudication had settled a dispute, and then the same subject matter was being referred to a second adjudication. The regulations require an Arbitrator to resign where the dispute is the claim or substantially the same as one previously referred to adjudication. Judicial review was therefore the appropriate method by which to consider the decision of the adjudicator in that regard. However, this case in respect of arbitration was different as the Arbitrator had delivered his final award, was therefore functus officio and an injunction was the appropriate way to restrain an Arbitrator from commencing further arbitration.