BRIGGS MARINE CONTRACTORS LTD AGAINST BAKKAFROST SCOTLAND LTD

Factual and Procedural Background

This commercial action was initially sisted for three months in February 2023 due to an arbitration clause in the contract between the parties, with the arbitration seated in England and governed by English law. The arbitration has been progressing slowly, with no clear timetable for a substantive hearing and an expectation that resolution within the next year is unlikely. The action has since been sisted further in periods of six and four months. At a hearing in March 2024, the Defendant moved to dismiss the action on the basis that it was serving no discernible purpose, but the court continued the action for three months to allow the Plaintiff to provide submissions on the benefits of keeping the action alive and to update on the arbitration's progress.

Legal Issues Presented

1. Whether the action must remain sisted under section 10 of the Arbitration (Scotland) Act 2010 or whether it should be dismissed due to lack of utility and undue delay.
2. Whether the court retains discretion to dismiss an action that has been sisted pursuant to an arbitration agreement if the arbitration is proceeding slowly or indefinitely.
3. The appropriateness of continuing the action on the commercial roll given the slow progress of arbitration and lack of urgency from the parties.

Arguments of the Parties

Defender's Arguments

• The action has no utility and its continuation causes prejudice and unnecessary expense to the Defendant.
• Since the arbitration is seated in England and governed by English law, any court recourse would be to English courts, not this court.
• Section 10 of the Arbitration (Scotland) Act 2010 requires the court to sist the action but does not require indefinite sisting.
• The court has inherent power to dismiss an action that is pointless or where jurisdiction has been ousted, supported by precedent.
• If dismissal is inappropriate, the court should allow the action to proceed as an ordinary action rather than remain sisted.

Pursuer's Arguments

• Requested the action be sisted for one year or indefinitely and moved to remove it from the commercial roll.
• Argued that if the action became an ordinary action, the parties would not need to check in with the court, and the action would remain visible post-arbitration.
• Dismissal would prejudice the Plaintiff.
• Suggested that further claims might arise outside the arbitration clause that could be pursued in the current action, though no specifics were given.
• Proposed the action might assist in document recovery or enforcement post-arbitration.
• Accepted the court's discretion to dismiss if the arbitration took an excessive length of time (e.g., 10 years), but did not anticipate such delay here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing that sists in the commercial court should be exceptional, as the court’s purpose is to provide speedy resolution of commercial disputes. While the mandatory sisting under section 10 of the Arbitration (Scotland) Act 2010 was acknowledged, the court held that this does not require indefinite sisting. If an arbitration is unduly delayed, the court retains discretion to dismiss the action for want of prosecution or unconscionable delay. However, as the arbitration was still active and progressing, albeit slowly, dismissal was not appropriate at this stage.

The court rejected the argument that the action should be dismissed simply because the arbitration was seated in England, noting that section 10(3) applies regardless of the arbitration seat. Despite the Plaintiff’s inability to articulate a clear benefit in keeping the action alive, the court found no sufficient delay to justify dismissal. However, given the slow progress and lack of urgency from both parties, the court determined it was not appropriate for the action to remain on the commercial roll, which is designed for cases requiring speedy resolution.

Holding and Implications

The court REFUSED the Defendant’s motion to dismiss the action but ordered that the action be withdrawn from the commercial roll and proceed as an ordinary action. The court further ordered a sist of one year to accommodate the arbitration’s progress, with a by order hearing scheduled shortly after the expiry of that period.

The direct effect is that the Plaintiff may keep the action alive while arbitration continues, but the case will no longer benefit from the commercial court’s expedited procedures. No new precedent was established; the decision reflects a balance between mandatory arbitration-related sists and the court’s inherent case management powers to ensure efficient use of judicial resources.