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.’
Forbes J
[1971] 1 QB 166
England and Wales
Citing:
Limited – Conquer v Boot CA 1928
The householder recovered damages in the county court in an action against a builder for breach of a building contract to complete the works in a good and workmanlike manner. He then brought a second action upon the same contract. In the second . .
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 09 November 2021; Ref: scu.468967