The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and substantial. Nevertheless, the adjudicator ‘not only took the initiative in ascertaining the facts but also applied his own knowledge and experience to an appreciation of them and thus, in effect, did BB’s work for it.’ The arbitration system was intended to provide speedy resolution of disputes. They dealt with cases which would often be necessarily complex, and parties should not be encouraged to trawl through judgments for minor errors. Awards should be set aside only in a case of clear error, which was not present here. Leave refused.
Chadwick LJ said: ‘the objective which underlies the Act and the statutory scheme [for adjudication] requires the courts to respect and enforce the adjudicator’s decision unless it is plain that the question in which he is decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the court will interfere with the decision of an adjudicator.’
Judges:
Sir Anthony Clarke MR, Chadwick LJ, Moore-Bick LJ
Citations:
Times 24-Nov-2005, [2005] EWCA Civ 1358, [2006] BLR 15, (2005) 104 Con LR 1
Links:
Statutes:
Housing Grants, Construction and Regeneration Act 1996 108, Scheme of Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649).
Jurisdiction:
England and Wales
Citing:
Cited – Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd CA 21-Nov-2003
. .
Appeal from – Carillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
Cited – Macob Civil Engineering Ltd v Morrison Construction Ltd TCC 12-Feb-1999
Once made, an award by an adjudicator under the Scheme was enforceable immediately and should be enforced by writ and application for summary judgment, provided only that the arbitrator had jurisdiction to make the award. It remained payable . .
Cited – Bouygues UK Limited v Dahl-Jensen UK Limited TCC 17-Dec-1999
An arbitrator had made an award, the consequence of which, it was claimed, would lead to a retention being released before it was actually due. It was claimed that this part of the award was outside the adjudicator’s jurisdiction.
Held: . .
Cited – Bouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation) CA 17-Aug-2000
When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a . .
Cited – C and B Scene Concept Design Ltd v Isobars Ltd CA 31-Jan-2002
The claimant appealed a refusal of summary judgement, in a claim to enforce an arbitration award. Where an award was challenged, enforcement should still be allowed to continue unless the challenge went as to the jurisdiction of the reference. . .
Cited – Ferson Contractors Limited v Levolux A T Limited CA 22-Jan-2003
. .
Cited – AMEC Capital Projects Ltd v Whitefriars City Estates Ltd CA 28-Oct-2004
Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A . .
Cited – Discain Project Services Ltd v Opecrime Development Ltd TCC 1-Aug-2000
The applicant sought leave to defend the enforcement of an arbitration award.
Held: The adjudicator had accepted oral and written communications with one party, from which the other party was excluded. This was such a serious breach of the . .
Cited – Balfour Beatty Building Ltd v Chestermount Properties Ltd 1993
It was argued that the party seeking a referral to arbitration need only rely on the existence of relevant events for its entitlement to an extension of time and has no regard for any delay for which it may be culpable and which may impact at the . .
Cited – Henry Boot Construction v Malmaison Hotel (Manchester) Ltd TCC 1999
. .
Cited – Royal Brompton Hospital National Health Trust v Hammond etc TCC 8-Jan-1999
. .
Cited – Discain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
Cited – Fox v Wellfair Ltd CA 1981
An expert arbitrator should not in effect give evidence to himself without disclosing the evidence on which he relies to the parties, or if only one to that party. He should not act on his private opinion without disclosing it. It is undoubtedly . .
Cited – Interbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’) CA 1984
The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been . .
Cited – Glencot Development and Design Ltd v Ben Barrett and Son (Contractors) Ltd TCC 13-Feb-2001
. .
Cited – Kye Gbangbola and Lisa Lewis v Smith Sherriff Limited TCC 20-Mar-1998
‘A tribunal does not act fairly and impartially if it does not give a party an opportunity of dealing with arguments which have not been advanced by either party’. . .
Cited – John Barker Construction Ltd v London Portman Hotel Ltd 1996
An architect who had to decide whether to grant an extension of time under clause 25 of the JCT conditions would not have acted fairly and lawfully and his decision would be fundamentally flawed if he had not carried out a logical analysis in a . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited by:
Cited – Shaw and Another v Massey Foundation and Pilings Ltd TCC 12-Mar-2009
The appellants had argued that they were not subject to the construction arbitration system because they were residential occupiers. They now said that as consumers vis a vis the construction contract. . .
Cited – Cantillon Ltd v Urvasco Ltd TCC 27-Feb-2008
After referring to the Carillion Construction case, the court held: ‘Whilst that case is, obviously, not authority for the proposition that a ‘good’ challenge to a decision on jurisdiction or natural justice grounds will be excluded on some . .
Cited – CRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar) TCC 19-Apr-2011
The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term . .
Cited – Alexander and Law Ltd v Coveside (21BPR) Ltd TCC 12-Dec-2013
The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due. . .
Lists of cited by and citing cases may be incomplete.
Construction, Arbitration
Updated: 04 July 2022; Ref: scu.234994