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Arbitration - From: 1970 To: 1979

This page lists 18 cases, and was prepared on 03 April 2018.

 
Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd [1970] AC 572; [1970] 1 Lloyds Rep 269; [1970] 1 All ER 796; [1970] AC 583
1970
HL
Lord Reid, Lord Hodson, Viscount Dilhorne, Lord Wilberforce,
Contract, Arbitration
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland. Held: Evidence of behaviour after a contract had been made is inadmissible to assist in the construction of an entirely written contract. An application for the appointment of an arbitrator stated that there was a submission to arbitration within the meaning of the Arbitration Act 1950, but the arbitration was held to be subject to the law of Scotland. While evidence of subsequent conduct is admissible to determine the existence of a contract, it is not admissible to determine the terms of a contract.
Lord Reid: "It has been assumed in the course of this case that it is proper, in determining what was the proper law, to have regard to actings of the parties after their contract had been made. Of course the actings of the parties (including any words which they used) may be sufficient to show that they made a new contract. If they made no agreement originally as to the proper law, such actings may show that they made an agreement about that at a later stage. Or if they did make such an agreement originally such actings may show that they later agreed to alter it. But with regard to actings of the parties between the date of the original contract and the date of Mr. Underwood's appointment I did not understand it to be argued that they were sufficient to establish any new contract, and I think they clearly were not. As I understood him, counsel sought to use those actings to show that there was an agreement when the original contract was made that the proper law of that contract was to be the law of England. I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later."
Lord Hodson: "I should add that I cannot assent to the view which seems to have found favour in the eyes of the Master of the Rolls and Widgery LJ. that as a matter of construction the contract can be construed not only in its surrounding circumstances but also by reference to the subsequent conduct of the parties."
Viscount Dilhorne: "I do not consider that one can properly have regard to the parties' conduct after the contract has been entered into when considering whether an inference can be drawn as to their intention when they entered into the contract, though subsequent conduct by one party may give rise to an estoppel."
Lord Wilberforce said: "once it was seen that the parties had made no express choice of law, the correct course was to ascertain from all relevant contemporary circumstances including, but not limited to, what the parties said or did at the time, what intention ought to be imputed to them on the formation of the contract. Unless it were to found an estoppel or a subsequent agreement, I do not think that subsequent conduct can be relevant to this question."
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 Hounslow London Borough Council v Twickenham Gardens Development Limited; 1971 - [1971] Ch 233
 
Astro Vencedor Compania Naviera SA v Mabanaft GmbH [1971] Lloyd's R 502; [1971] 2 QB 588
1971
CA
Lord Denning MR
Arbitration, Transport
For an arbitration clause in a contract between parties to be used to enforce arbitration of a tortious claim, the tortious claim must arise out of the contractual matters. In this case damages were sought for the wrongful arrest of a ship in consequence of an alleged breach of the contract.
Lord Denning MR said: 'The arrest of the ship was the direct consequence of the charterers' claim for damages against the shipowners. . The arrest was simply the follow-up to that claim. It was so closely connected with it that the rightness or wrongness of the arrest is also within the scope of the arbitration. This is borne out by the practice of the Admiralty Court. There have not been many claims for wrongful arrest recently. But the practice of the Court of Admiralty is to deal with a claim for wrongful arrest at the same time as the claim for which the arrest was made. In The Evangelismos . . the Privy Council said that such procedure is very 'convenient'.'
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Purser and Co (Hillingdon) Limited v Jackson and another [1971] 1 QB 166
1971
ChD
Forbes J
Arbitration
Forbes J said: "Mr Macgregor maintains that arbitrations are concerned with disputes and not with causes of action and he says that within a cause of action there may be many disputes and the arbitrator is only concerned with disputes. He contends boldly, for the view that Conquer v Boot [1928] 2 KB 336 has no application at all to arbitrations in general; Mr Dyson says it does, and that seems to be the first point on which the court should give a decision.
I must confess that I would feel very reluctant to extend the draconian doctrine of Conquer v Boot into fields to which I am not constrained to extend it and neither counsel has been able to put before me any case which constrains me to do so. There is no authority binding upon me, indeed I think counsel say there is no authority at all, which indicates that the doctrine of Conquer v Boot has to be applied in arbitrations. But it seems to me that it is unnecessary to decide this case on this general point, because there are other more particular points which enable the question for the decision of the court to be answered. The first of these arises on Mr Macgregor's next argument: that where you have a previous arbitration Conquer v Boot can only apply to the matters which were therein referred to the arbitrator. In other words, you have to look at what was in the terms of reference and if an issue arises on the terms of reference, then there is an estoppel per rem judicatam in so far as the arbitrator has made an award upon that issue. Or indeed, I think Mr Macgregor would go so far as to say, whether or not he has made an award upon that issue. What determines the matter is whether it is included within the terms of reference; as he indicated, the fact is that, although it is within the terms of reference, it does not find its way into the points of claim, means that to that extent the general doctrine of Conquer v Boot applies. You are estopped per rem judicatam even though you did not raise the matter in your points of claim, if the matter clearly lies within the ambit of the terms of reference."
Accepting Mr Macgregor's submission: "the most that can be said for the rule in Conquer v Boot in arbitration proceedings is that the terms of reference of the arbitrator are the matters which determined the issues which the arbitrator has to decide. If those terms of reference include a particular issue, then whether or not, in the end, the arbitrator makes an award in relation to that issue, that issue has been raised and an adjudication has been made in this sense: that if nothing is done about the arbitrator's award - and due time for appeals and so on and so forth, referring the matter to the High Court in one way or another, has gone - then it is no good the claimant subsequently saying 'Ah, but the arbitrator did not make an award upon this issue'. The proper remedy would have been to have challenged the award by any of the appropriate methods, and if he does not challenge the award by one of those approved methods, he will find himself estopped per rem judicatam if he seeks to raise such an issue in the subsequent arbitration proceedings."
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Binder v Alachouzos [1972] 2 QB 151
1972
CA
Lord Denning MR, Phillimore LJ, Roskill LJ
Arbitration
A contract recited that the parties had been advised by solicitors and counsel that the Moneylenders Acts did not apply to transactions which were the subject of legal proceedings between them, and went on to provide for a compromise. Held: There can be a bona fide compromise of an issue as to whether a contract is illegal. Lord Denning: "In my judgment, a bona fide agreement of compromise such as we have in the present case (where the dispute is as to whether the plaintiff is a moneylender or not) is binding. It cannot be reopened unless there is evidence that the lender has taken undue advantage of the situation of the borrower. In this case no undue advantage was taken. Both sides were advised by competent lawyers on each side. There was a fair arguable case for each. The agreement they reached was fair and reasonable. It should not be reopened. I agree with the judge below that this agreement of compromise was binding and I would dismiss the appeal."
Phillimore LJ said: "Speaking for myself, I think it is entirely plain that this was a bona fide compromise, and that there is nothing in the evidence here which could make this court say with any confidence that these were moneylending transactions, illegal transactions; and accordingly, as it seems to me, here the court is faced with a bona fide compromise of what was a question of fact. The terms of the agreement are not to be described as colourable. The court ought to be very slow to look behind an agreement reached in such circumstances as these. I cannot think that Mr Jackson has made out anything like a case which would be strong enough to justify this court in looking behind the terms of what was clearly a bona fide compromise, and I also would accordingly dismiss this appeal."
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 Middlemiss and Gould v Hartley Corporation Pty Ltd; CA 1972 - [1972] 1 WLR 1643
 
Fakes v Taylor Woodrow Construction Limited [1973] QB 436
1973


Arbitration
The plaintiff resisted an application for a stay of his action for an arbitration on the basis that his lack of funds would make it impossible to take part in an arbitration.
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'The Simonburn' [1973] 2 Lloyds 145
1973


Arbitration
A party who may wish to apply for an extension of time for referring an issue to arbitration must do so as soon as possible upon realising the need for an application. The remedy is available as a discretion.
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Prodexport State Company for Foreign Trade v E D and F Man Ltd [1973] QB 389
1973


Arbitration
An arbitrator has jurisdiction to hear a case where the contract has been affected by supervening rather than ab initio illegality.
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Jugoslavenska Oceanske Plovidba v Castle Investment Co Inc [1974] QB 292
1974
CA
Lord Denning MR
International, Arbitration, Damages, Litigation Practice
London arbitrators had made an award for unpaid hire in US dollars, being the currency of the hire contract. An issue arose whether an English court could give leave under the Act to enforce the award in the same manner as a judgment to the same effect. Held: English arbitrators had jurisdiction to make their awards in a foreign currency where that currency was the currency of the contract. Such an award could be enforced with the leave of the court by converting the award into sterling at the rate of exchange ruling at the date of the award.
Lord Denning MR said: "In my opinion English arbitrators have authority, jurisdiction and power to make an award for payment of an amount in foreign currency. They can do this – and I would add, should do this – whenever the money of account and the money of payment is in one single foreign currency. They should make their award in that currency because it is the proper currency of the contract. By that I mean that it is the currency with which the payments under the contract have the closest and most real connection. Likewise, whenever the proper currency of a contract is a foreign currency, English arbitrators can and should make their award in that currency, unless the parties have expressly or impliedly agreed otherwise. The proper currency can usually be ascertained without difficulty. But if the transaction is closely connected with two currencies (as in The the Hu [1970] P 106 Japanese salvors of a Panamanian vessel) the arbitrators can and should make their award in whichever of the two currencies seems to them to produce the most appropriate and just result." and (Roskill LJ) "I would only add on this part of the case that this decision does not amount to a general licence to arbitrators and umpires to make awards in any currency they choose heedless of the provisions of the contract with which they are concerned. The currency of account and the currency of payment will in most cases be easily ascertainable just as the proper law of a contract is in most cases easily ascertainable. In a few cases the problem will be difficult as in a few cases the question of proper law is difficult. But even in a difficult case the problem must ultimately be capable of solution and the arbitrators (if they wish) can – as I would think – always decide as a matter of discretion to make an award in sterling unless either the terms of the contract in question or of the arbitration agreement under which their jurisdiction arises or some other reason prevents them from so doing."
Arbitration Act 1950 26
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Sutcliffe v Thackrah and Others [1974] AC 727; [1974] 1 All ER 859; [1974] 2 WLR 295; [1974] 1 Lloyds Rep 318
1974
HL
Lord Reid, Lord Hodson, Lord Morris and Lord Salmon, Viscount Dilhorne
Construction, Arbitration, Professional Negligence
In acting under clause 66 of the ICE conditions, the Engineer was in the intermediate position of a quasi-arbitrator. The House described in terms of 'fairness' the duty of an architect when acting not as an arbitrator or quasi-arbitrator but in the role of valuer or certifier.
An action for damages for negligence will lie against a valuer to whom the parties have referred the question of valuation if one of them suffers loss as the result of his negligent valuation.
Lord Reid spoke of a duty to act in a fair and unbiased manner or fairly and impartially. Viscount Dilhorne regarded an honest exercise of professional skill and judgment as enough.
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Hall and Woodhouse Ltd v Panorama Hotel Properties Ltd [1974] 2 Lloyd's Rep 413
1974


Arbitration, Litigation Practice

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Union of India v Aaby's Rederi A/S, The Evje [1975] AC 797
1975
HL
Viscount Dilhorne, Lord Salmon
Contract, Arbitration
Lord Dilhorne said of the words "to be settled in London": "At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in accordance with English law." The phrase "to be settled in London" did not to take the dispute out of the scope of an arbitration clause.
Neither Lord Salmond nor Lord Dilhorne could see a difference between clauses poviding for arbitration of disputes 'arising under' and 'arising out of' a contract.
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The Jocelyne [1977] 2 Lloyds 121
1977

Brandon J
Arbitration

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Transmountana Armadora v Atlantic Shipping [1978] 1 Ll R 391
1978

Donaldson J
Litigation Practice, Arbitration
Donaldson J discussed the nature of a sealed offer in arbitration proceedings: "Although the respondents' offer of settlement has been referred to as an 'open offer', this is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely, 'without prejudice', 'sealed' and 'open'.
A 'without prejudice' offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement.
A 'sealed offer' is the arbitral equivalent of making a payment into Court in settlement of the litigation or of particular causes of action in that litigation. Neither the fact, nor the amount, of such a payment into Court can be revealed to the Judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties' claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. However, it should remain sealed at that stage and it would be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them."
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Toepfer v Warinco AG [1978] Lloyds Rep 569
1978

Brandon J
Contract, Arbitration
The buyer's representatives had failed to see that the cargo was coarse-ground meal rather than fine-ground meal. The seller defended pleading waiver, based on this omission. Held: The defence failed because the buyer's supervisor had failed to spot the discrepancy. The omission amounted to a failure to mitigate such that the buyers were only entitled to nominal damages. It is not necessary that an arbitration award should contain express findings of fact, provided that the necessary findings may be "spelled out".
1 Citers


 
Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA [1979] AC 210; [1979] 3 WLR 818; [1979] 3 All ER 803
1979
HL
Lord Diplock
Arbitration, Litigation Practice
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed the company to have no other assets from which to meet the hoped-for damages award than the fund in England. No proprietary claim was, or could have been, made by the claimant to the fund. Held: The Court could not grant interlocutory relief when the substantive proceedings were taking place abroad. English courts had no jurisdiction to grant a freezing injunction in a case in which there was no claim for substantive relief before the English courts.
Lord Diplock said: "A right to obtain an interlocutory judgment is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment of the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction." and ""To come within the sub-rule the injunction sought in the action must be part of the substantive relief to which the plaintiff's cause of action entitles him; and the thing that it is sought to restrain the foreign defendant from doing in England must amount to an invasion of some legal or equitable right belonging to the plaintiff in this country and enforceable here by a final judgment for an injunction." and
“The general rule is that the jurisdiction of the English Court over persons is territorial. It is restricted to those upon whom its process can be served within the territorial limits of England and Wales. To this general rule there are some exceptions. These are now to be found in Order 11 of the Rules of the Supreme Court which have statutory force by nature of section 99 of the Supreme Court of Judicature (Consolidation) Act 1925. Order 11 permits the High Court to grant leave to a plaintiff to serve its process upon a person outside the territorial limits of England and Wales in those cases, but only in those cases, that are specified in sub-rules (a) to (o) of rule 1(1) or in rule 2 . .
In several of the cases specified in sub-rules (a) to (o) the jurisdiction exercisable over foreigners by the High Court is wider than that which is recognized in English law as being possessed by courts of foreign countries. These are ‘exorbitant’ jurisdictions which run counter to the normal rules of comity among civilized nations. For this reason it has long been held that where there is any room for doubt as to their meaning the provisions of the sub-rules are to be strictly construed in favour of the foreigners : The Hagen [1908] P.189, 201 per Farwell L.J. and it is in my view equally well settled now that it is not permissible in any action commenced by service of process on a person out of the jurisdiction to litigate any claim that does not fall within one or other of sub-rules (a) to (o).”
The purpose of a freezing order is "…to ensure that there will be a fund available within the jurisdiction to meet any judgment obtained by a Plaintiff in the High Court against a Defendant who does not reside within the jurisdiction and has no place of business here."
As to the 1925 Act: "That sub-section, speaking as it does of interlocutory orders, presupposes the existence of an action, actual or potential, claiming substantive relief which the High Court has jurisdiction to grant and to which the interlocutory orders referred to are but ancillary. This factor has been present in all previous cases in which Mareva injunctions have been granted …. it is not present in this."
Rules of the Supreme Court Order 11 Rule 1 - Judicature Act 1925 45(1)
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Services Europe Atlantique Sud (SEAS) v Stockholms Rederiaktiebolag Svea [1979] AC 685
1979
HL

Arbitration

1 Citers


 
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