Middlemiss & Gould v Hartlepool Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON |
| Judgment Date | 12 October 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1012-1 |
| Date | 12 October 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J1012-1
In The Supreme Court of Judicature
Court of Appeal
Revised
Appeal by leave by Claimants, Nlddlemiss Gould (a firm) from order of Mr. Justice Cuming-Bruce on 21st inarch 1972 at Leeds
The Mater of the Roll, (Lord Denning)
Loud Justice Edmund Davies and
Lord Justice Stephenson
In the Matter of the Arbitration Act 1950
Mr. Desmond Wright (instructed by Messrs. barren Morton & Co., agents for Messrs. Atha, Denison, SuddardsCo. of York) appeared on behalf of the Appellant Claimants.
Mr. PATRICK Garland, Q. C., and Mr. Anthony May (instructed by Mr. Eric James Baggett, Town Clerk, Hartlepool) appeared on behalf of the Respondents.
THE MASTER OF THE ROLLS: In 1969 Middlemiss & Gould entered into a contract to build 85 houses and 25 bungalows on an estate at Hartlepool for the Corporation. The contract incorporated the R.I.E.A. form. It contained provisions for interim certificates. The total price was some £300,000. The building contractors started the work. By the middle of 1970 they had done about one third of it, which they valued at about £100,000. Differences arose as to the way in which the interim certificates were to be calculated. Seeing that the dispute was as to whether the certificate was in accordance with the conditions, it could be referred to arbitration whilst the work was proceeding. On 24th July 1970 the contractors asked the President of the Royal Institute of ratfish Architects to appoint an arbitrator. On 24th September 1970 he appointed Mr.William Mills of Sutton Coldfield. On 7th October 1970 the arbitrator held a preliminary meething at which directions were given for pleadings and so forth. But on the very next day, 8th October 1970, the Corporation gave notice to the contractors, alleging that they were in default in hat they had not proceeded regularly and diligently with the works. On 26th October 1970 the Corporation alleged that the default had continued for 14 days, and on that ground determined the employment of the contractors.
Notwithstanding, that termination, the arbitration went forward. Points of claim and points of defence were delivered. In the points of claim the contractors set out their contentions as to the way in which interim certificates were to be calculated and claimed to be paid a sum of £9,209 on that basis. In the points of defence the Corporation set out their contentions about the calculations. But they did not confine themselves tothe calculation. They said that the contract had been terminated on 26th October 1970, and that on that account no sums were payable to the contractors. These are the material paragraphs in the defence:-
Paragraph 8: "The second £3,000 has not been paid because the work did not progress as promised by the Claimants and the said Agreement for the building of the houses and bungalows was determined on the 26th of October, 1970 by notice given by the Respondents to the Claimants under the provisions of clause 25 of the said Agreement."
Paragraph 11 says: "The Respondents repudiate the claim… (c) Because of the termination of the Agreement no further payments are due to the Claimants at the present time (see clause 25(d) of the Agreement)"
So on the pleadings the first issue was what was the amount properly payable to the contractors? The second issue was: In any event, seeing that the employment had been terminated, was any sum payable at all to the contractors
The arbitrator, Mr. Mills, did not have a hearing. He did not have witnesses, nor lawyers arguing before him. He considered the matter on the papers submitted to him. He is very well qualified. He is a chartered architect and quantity surveyor and a Fellow the Institute of Arbitrators. Mr. Mills gave a written award in which he dealt with the matter fully and carefully. He decided in favour of the contractors. In his award he said that the interim certificates should be calculated in a way which was that which the contractors had urged and not as the Corporation wanted. Further, be made his very definite award" I do hereby award and direct that the Corporation shall pay to the claimants the sum of £7957.74p within 14 days.
He also awarded interest and costs to the contractors.
The arbitrator gave his reasons in the form of a special case. He did so on his own initiative, as the Arbitration Act 1950, section 21, authorised him to do. That means that either party, if they wish to take it up to the - High Court, could do so. The arbitrator set out the contentions of the parties, including the Corporation's claim that "they have paid all moneys due to the contractors". He must have decided that point against the Corporation, because he awarded, as I have said a sum of £7951.74 to be due with interest. The total came to £9,046.53 and costs.
If the Corporation wished to challenge that award, they should have brought it up to the High Court within six weeks. They did not do so. So it became and was a final and binding determination of the matters between them.
The contractors, wishing to be paid, applied to the Court under section 26 of the Arbitration Act 1950 for leave to enforce this award in the same manner as a judgment to the soave effect in the High Court. The District Registrar refused So did the Judge. The Judge found it a difficult point. He had to decide it hurriedly on circuit. He refused leave because he thought that the Corporation might be able to rely on clause 25(4)(d) of the R.I.B.A. form. Clause 25(4) says that:-
In the event of the employment of the contractors being determined as aforesaid….
(a) the employer may employ and pay other persons to carry out and complete the works….
(d) Until the completion of the works under paragraph (a) of this sublease the employer shall not be bound byany provision of this contract to make any further payment to the contractor."
The Judge thought that, by reason of clause 25(4)(d) the Corporation might not be bound to pay, despite the fact that the award had been made by the arbitrator. Regarding it as an arguable point, he refused leave to enforce the award. Now there is an appeal by the contractors to this Court.
I am afraid that I cannot agree with the Judge. Once an award has been made - and not challenged in the Court it should be entered as a judgment and given effect accordingly. It should not be held up because the losing party says he wants to argue some point or other or wants to set up a counterclaim or anything of that sort. He would not be allowed to do so in the case of a judgment not appealed from. Nor should do so in the case of an...
To continue reading
Request your trial
-
Sans Souci Ltd.v VRL Services Ltd
...loss. 76 In all this the Arbitrators failed to allude to or consider the issue of the "unrecoverable expenses" defence. In Middlemiss & Gould v Hartlepool Corp. [1972] 1 W.L.R. 1643, the issue in the arbitration was the determination of the contract of employment under a Clause 25(4) of th......
- Chin Hwa Engineering Development Co; State Government of Sarawak
- Rahamatthllah a/l Mohamaed Ismail (t/a MR Kamal Bersaudara) v The Netherlands Insurance Company Ltd
-
VRL Services Ltd v Sans Souci Ltd
...had misconducted themselves or if the award had been improperly procured ( Middlemiss and Goned (a Firm) v. Hartlepool Corp [1972] 1 W.L.R. 1643 ). He asserted that an examination of the award makes it clear that there is only one possible interpretation with regard to interest, and that p......