Dineen v Walpole
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 30 January 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0130-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 1969 |
[1969] EWCA Civ J0130-1
In The Supreme Court of Judicature
Court of Appeal
(On Apfeal From Queen's Bench Division)
Lord Justice Davies
Lord Justice Edmund Davies and
Lord Justice Widgery
In the Matter of The Arbitration Act,1950
and
In The Natter of An Arbitration
Mr. T. A. CONINGSEY (instructed by Messrs. Mille & Reeve, Norwich) appeared on behalf of the Appellant.
Mr. P. N. GARLAND (instructed by Messre. Peacock & Goddard, Agents for Messrs. Chittock, Francis & Back, Norwich) appeared on behalf of the Respondent.
This is an appeal form an order of Mr. Justice James made on the 3rd May last when, on a motion by a claimant in a small building arbitration, he allowed the Claimant's appeal from the order as to costs made by the Arbitrator.
The award by the Arbitrator is very short and it is in these words: "I award the Claimant D.M. Dineen against the Respondent the sum of Forty-five Pounds to put right the items under Clause 3 or Points of Clam under (a) (b) and (c). I award that the costs of the Arbitration to be paid by the Claimant D.M. Dineen." In other words, having found in favour of the Claimant in the sum of £45, he nevertheless ordered the successful claimant to pay the whole costs of the Arbitration. From that order the Respondent builder appeals.
It is necessary that I should (I hope not at too great a length) explain the circumstances of the case. On the 9th March, 1965 a building contract was entered into between the Claimant as the building owner and the Respondent as the builder for the erection of a new bungalow at Newton Flotman in Norfolk. The contract was in a printed form and the agreed price was £3,300. I need only refer to two clauses in the contract: clause 8 - "The Contractor shall on being given notice thereof by the Employer make good at his own cost any defects which exist at, or may appear within a period or six months after, the practical completion of the work if proved to arises from workmanship or materials not in accordance with this Agreement"; the rest of the clause I need not read. Then I need only refer to clause 15, without quoting it. It is a short arbitration clause providing for an arbitrator in the event to be appointed by the President of the Royal Institute of British Architects.
The building, we were told, was completed round about the end of April of the same year. According to a statement inone of the letters which were exhibited and have been put before the Courts, Mr. Dineen, the Claimant, made an oral complaint to the builder in or about September of the same year with regard to three matters, the three matters referred to in the award, viz: (a) cracks in the plaster throughout the dwellinghouse; (b) the banister rail being defective, and (c) Marley tiles in the front passage and kitchen having raised.
The builder's case, it would appear, was that any oral complaint was made a good deal later than that and that the banister rail was not mentioned until November, 1966.
However, after a great deal of correspondence, which seems to suggest that or any rate by a certain date the claimant was demanding that this work should be done and after there had obviously been some delay on the part of the Respondent, on the 1st November, 1966 - that is to say, eighteen months or there - about after the completion of the contract - a man was sent by the Respondent to do some month a man came again, but the claimant was unwilling for him to do the work because of his dissatisfaction with the work previously done.
On the 6th December of the same year the Claimant's solicitors wrote to the Respondent's solicitors and said that they were going to arbitration, but on the 12th January, 1967, before the Arbitrator was appointed (he not being appointed until a later date) the Claimant himself wrote a letter to the Respondent giving him a number of dates on which he would be present in the house so that the Respondent's men could have access to do the work. It was said that the first date was an impossible date because it was the same date as the date of the letter and that all the other dates were inconvenient.
However, nobody ever came to do any work.
The Arbitrator was appointed in January and the arbitrationwas held in May with the result that I have indicated.
The points of Claim were very short. They did not particularise the amount of the damage but claimed damages for the defects that I have already mentioned, (a), (b) and (c).
It is interesting to see what the Points of Defence amounted to. They are not very long and it may be convenient that I should read them: "1. save that it is denied that the Claimant gave notice to the Respondent within the time limited by clause 8 of the said Agreement dated 9th March 1965, paragraphs 1 and 2 of the Points of claim are admitted." That plea depended on what, in my view, is a misconstruction of Clause 8 which I have read. That clause does not say that notice of the defects must be given within six months of the completion; it says that notice must be given of any defects arising within six months of completion, which is a different thing.
Then the Points of Defence continue: "2. The Claimant first brought to the Respondent's notice certain alleged defects, orally, about twelve months after the Claimant took possession of the said dwellinghouse, to wit in about April 1966 but referred only to items specified in paragraph 3 (a) and (c) in the points of Claim" - that is the plaster and the Marley tiles. "3. Notwithstanding the Claimant's failure to give notice within the said time limit the Respondent agreed to make good the said items 3 (a) and (c) at his own cost. 4. The claimant informed the Respondent he would shortly be selling the dwellinghouse and required to be present when the said work was effected, and it was agreed between the parties that the claimant should inform the Respondent when it would be convenient for the claimant for the said work to be carried out. 5. On a day at about the end of October 1966 the claimant informed the Respondent he was ready for the said work to be carried out and on about the 1st and 18th November 1966 theRespondent's painter attended at the said dwellinghouse and amended to carry out certain of the said work but the claimant on about the 18th November 1966 refused to allow the painter to completer the work. 6. The Claimant first referred to the banister rail in a conversation with the Respondent on about 18th November 1966 when the Respondent informed the Claimant he was still prepared to attend to any defects which came within the provisions of Clause 8 of the said Agreement. 7. By letter of 12th January 1967 the claimant gave the Respondent certain further daters on which be required the said work to be effected but these dates were given at such short notice that it was not convenient or practicable for the Respondent to have the said work done. 8. By letter of 24th January 1967 the Respondent's Solicitors requested the Claimant's Solicitors to suggest several alternative dates and times for the purpose of effecting the said work but the Claimant has failed to do so. 9. The Respondent has at all times been and is still willing to make good the defects set out under paragraph 3 of the Points of Claim in accordance with the terms of the said Agreement. 10. The Respondent says that accordingly the Claimant is not entitled to an award of damages and asks that the Claimant be ordered to pay the Respondent's costs incurred in consequence of this arbitration."
Those were the issues before the Arbitrator, and it is to be observed that there was no offer of each to the Claimant, and there was no step taken by way of a written offer, equivalent in an arbitration to a payment in. On those pleadings the Respondent lost and, as I have said, was ordered to pay £45 damages for his breach of contract.
What apparently was argued before the Arbitrator - the argument that succeeded - was that, despite the fact that the Respondent had failed on liability, by reason of the matters pleaded in the Points of Defence (what I might call the historyand all the circumstance) the Claimant not merely should not be awarded his costs but ought to be ordered to pay the whole of the costs.
Those are the facts that were before the Arbitrator. In a couple of sentences, what the Respondent was saying was: "You did not give me notice in time" - he is technically wrong about that- "but when you did give me notice I was always ready and willing to do the work if you had only given me an opportunity. I still am ready and willing, and you ought not to have brought these arbitration proceedings which are premature." It is to be supposed that, although he found against the Respondent on liability, it was considerations of that kind that led the Arbitrator to make the award which he did.
Mr. Coningeby, who has said everything that could be said on behalf of the builder in this case, makes, I think, two submissions. First, he says that, in order to displace the order made by the Arbitrator in the exercise of his discretion, there is an onus upon...
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