The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they cannot claim that the appellant’s surveyor must be in the position of an independent arbitrator, who has no other duty which involves acting in the interests of one of the parties.’
and ‘Dr Telfer declined to proceed with the matter unless he was provided with the information to which, on his erroneous view of the contract, he held himself entitled; in this view the Appellants concurred, and this position was maintained up to and after the issue of the writ. This means an illegitimate condition precedent to any consideration of the granting of a certificate was insisted on by Dr. Telfer and by the Appellants. It is almost unnecessary to cite authority to establish that such conduct on the Appellants’ part absolved the Respondents from the necessity of obtaining such a certificate, and that the Respondents are entitled to recover the amount claimed in the action.’
and ‘The view of the function of the appellant surveyor under clause 7 of the contract which I have already expressed, makes it clear beyond dispute that the Respondents have done everything which was necessary for them to do in order to require Dr. Telfer to proceed to consider the granting of a certificate under clause 7, but that Dr. Telfer declined to proceed with the matter unless he was provided with the information to which, on his erroneous view of the contract, he held himself entitled; in this view the Appellants concurred, and this position was maintained up to and after the issue of the writ. This means an illegitimate condition precedent to any consideration of the granting of a certificate was insisted on by Dr. Telfer and by the Appellants. It is almost unnecessary to cite authority to establish that such conduct on the Appellants’ part absolved the Respondents from the necessity of obtaining such a certificate, and that the Respondents are entitled to recover the amount claimed in the action.’
Judges:
Lord Thankerton
Citations:
[1947] AC 428
Jurisdiction:
England and Wales
Citing:
Appeal from – Leyland and Co v Cia Panamena Europea Navigacion CA 1943
Goddard LJ said: ‘He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him . .
Cited by:
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Applied – Hounslow London Borough Council v Twickenham Gardens Development Limited 1971
The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate . .
Cited – Amec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Lists of cited by and citing cases may be incomplete.
Construction, Arbitration
Updated: 09 May 2022; Ref: scu.185452