Alphamix Ltd v The District Council of Rivière du Rempart
| Jurisdiction | UK Non-devolved |
| Judge | Lord Leggatt |
| Judgment Date | 05 June 2023 |
| Neutral Citation | [2023] UKPC 20 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0075 of 2022 |
[2023] UKPC 20
Lord Kitchin
Lord Hamblen
Lord Leggatt
Lord Burrows
Sir Kim Lewison
Privy Council Appeal No 0075 of 2022
Privy Council
Trinity Term
From the Supreme Court of Mauritius
Appellant
Anne-Sophie Jullienne
Jacob Grierson
Thomas Granier
(Instructed by Sheridans (London))
Respondent
Patrice Doger De Speville SC
Imtihaz Mamoojee
Adila Noushreen Luttoo
(Instructed by Etude Guy Rivalland (Mauritius))
Heard on 26 April 2023
Under the provisions of the Mauritian Civil Procedure Code (“the Code”) which govern domestic arbitrations in Mauritius, the mandate of an arbitrator — if no time limit is fixed by the arbitration agreement — lasts for six months from the date of appointment (article 1015). This period may be extended by agreement of the parties. One of the grounds (set out in article 1027–3 of the Code) on which an arbitration award may be annulled is if the arbitrator's decision is not within the mandate conferred on him by the parties (“l'arbitre a statué sans se conformer à la mission qui lui avait été conférée”).
The issue on this appeal is whether the Supreme Court of Mauritius was wrong to annul an award on the ground that it was delivered after the arbitrator's mandate had expired.
The dispute referred to arbitration arose out of a contract for the construction of the Rivière du Rempart market. The contractor (“Alphamix”) claimed to be owed substantial sums under the contract by the employer (“the District Council”). An arbitrator was originally appointed in May 2009. He made three interim awards but then resigned. A new arbitrator (Mr Justice Benjamin Marie Joseph) was appointed on the terms of an agreement made in April 2015 to decide the remaining issues. The proceedings were protracted. The period of the arbitrator's mandate (initially six months) was extended on several occasions by agreement of the parties. On 29 November 2018 a “final extension” was agreed to 31 December 2018.
Arrangements were made for the arbitrator to deliver his award in person to the parties on 27 December 2018. However, because of illness (he was suffering from bad flu) the arbitrator postponed the appointment — first to 28 December and then to 31 December 2018 (at 10am). The parties attended the arbitrator's chambers at 10am, and again at 12pm, on 31 December 2018 but on each occasion they were told that the award was not ready.
Eventually, at 1.10pm, a hearing took place before the arbitrator in his chambers, attended by the parties, their attorneys and counsel. It will be necessary to return in more detail to what occurred at and following this hearing. But, in outline, the arbitrator read out the operative part of his award, which assessed the amount of interest payable by the District Council on sums previously awarded to Alphamix, and told the parties that they would only be provided at that stage with an unedited version of the award; an edited version, which would not change the substance of the findings, would be provided “later on”. Both counsel stated that they had no objection. Immediately after the hearing, at 1.56pm, the unedited (and unsigned) version of the award which the arbitrator had read out was sent by email to the parties.
On 3 January 2019 (which was the next working day) at 1.28pm the arbitrator's secretary informed the parties' lawyers by email that “a copy of the formatted, edited and signed version of the award delivered on 31 December 2018” was now ready for collection. A copy of this version of the award, which was signed by the arbitrator and dated 31 December 2018, was attached to the email.
On 22 January 2019 the District Council applied to the Supreme Court for an order annulling “the purported award dated 31 December 2018” (a reference to the unedited and unsigned version provided on 31 December 2018) and “the signed award delivered on 3 January 2019”. The judgment of the Supreme Court was given almost three years later, on 14 January 2022. The Supreme Court granted the application and annulled the award on the ground that it was delivered after the arbitrator's mandate had expired. The unedited and unsigned version provided on 31 December 2018 was held not to be a valid award because under articles 1026–4 and 1026–5 of the Code it is a mandatory requirement that an award is signed by the arbitrator(s), failing which it is a nullity.
From the order of the Supreme Court, Alphamix appeals as of right to the Board.
Before the Board Alphamix has not sought to argue, as it did in the court below, that the unsigned document provided to the parties on 31 December 2018 was a valid award — a hopeless contention given the clear terms of articles 1026–4 and 1026–5 of the Code. Although, confusingly, the grounds of appeal have been formulated and reformulated in slightly different (and over-elaborate) ways at different stages of the appeal, in substance two arguments are made:
(i) The Supreme Court ought to have decided that the award delivered on 3 January 2019 was valid because: (a) as a matter of law it is sufficient that the award is signed, even if it is not communicated to the parties, before the mandate expires; and (b) as the award communicated to the parties on 3 January 2019 was dated 31 December 2018, the court should have found that the award was signed on that date unless the contrary was proved, which it was not.
(ii) In any event the Supreme Court ought to have held that the parties agreed to extend the arbitrator's mandate beyond 31 December 2018, with the result that the award delivered on 3 January 2019 was within the scope of the mandate even if it was not signed until that day; alternatively, the District Council waived the right to contend otherwise.
Although presented as an alternative case, the Board finds it convenient to consider first the argument that there was an agreed extension of the arbitrator's mandate. Before the Supreme Court this argument was not advanced by Alphamix, but it was advanced by counsel representing the arbitrator who submitted that it was open to the court to find that there had been a “tacit prorogation” of the arbitrator's mandate with the result that delivery of the award on 3 January 2019 was within the mandate.
Although the Supreme Court heard oral argument on this question, it was not mentioned in the judgment. This may be because, before the judgment was given, the arbitrator was released from the proceedings and ceased to be a party. The court may have considered that in these circumstances, as the point had not been raised by Alphamix, it was unnecessary to deal with it. Be that as it may, the Board is satisfied that the issue is properly raised by Alphamix on this appeal. The contention that there had been a “tacit prorogation” of the arbitrator's mandate was made and counsel representing the District Council made submissions in response to it in the proceedings before the Supreme Court; it was included in the grounds for which Alphamix was granted permission to appeal; and there is no unfairness in allowing Alphamix to advance the argument before the Board.
It is common ground that the mandate of an arbitrator may be extended by the express or implied consent of the parties. No formalities are required and the necessary...
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