Modern Building Wales Ltd v Limmer & Trinidad Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE ORMROD |
| Judgment Date | 10 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0210-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 1975 |
[1975] EWCA Civ J0210-1
Lord Justice Buckley and
Lord Justice Ormrod.
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Defendants from order of Mr. Justice Kerr, London, dated November 20, 1974.)
MR P. MILLER (instructed by Mr. M.E. Brown) appeared on behalf of the Appellants (Defendants).
MR. R. AKENHEAD, (instructed by Messrs. Freedman & Co.) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal from an order of Mr. Justice Kerr in Chambers of the 20th November, 1974, by which he refused a stay of further proceedings in this action pending arbitration. We have not got the advantage of any written note of the learned judge's reasons for so doing, but we are told that the ground upon which he made his order was that he considered that there was a doubt as to whether the contractual document with which we are concerned, which is a written order dated 18th December, 1968, for the supply of certain labour, plant and machinery, imported by reference a form of contract between a contractor and a subcontractor which has in it an arbitration clause, and possibly that there were further doubt that if that form of contract was by reference imported into the contract between the parties at all, that part of it which contained the arbitration clause was a part which was so imported.
Our attention has been drawn to a passage in Russell on Arbitration, 158th edition, at page 153, which reads as follows: "Any doubt about the written submission being quite clearly established is … A sufficient reason for the judge's exercising his discretion against a stay."
The relevant statutory provision is Section 4 of the Arbitration Act 1950, which provides: "If any party to an arbitration agreement, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the agreement, or any person claiming through or under him, I respect of any matte agreed to be referred, any party to those legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in theproceedings, apply to that court to stay the proceedings, and that court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the agreement, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings."
The expression "arbitration agreement" is defined in Section 32 of the Act In these terms: "In this Part of this Act, unless the context otherwise requires, the expression 'arbitration agreement' means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not."
The situation in this case is that the plaintiffs, Modern Building Wales Ltd., are head contractors under a contract with the Taf Fechan Water Board for the construction of a building at Nelson in Glamorgan. On the 4th September, 1968, the defendant company, who were nominated sub-contractors for the purpose of putting in some suspended ceilings in the building, delivered a quotation to the architect for that work in the sum of £5,018. 7. 6. The only terms specified in that document that I need mention are: "Terms: Less per cent. discount to main Contractor. Payment of 90 per cent, of the value of the work executed to be made monthly as the work proceeds and the balance one month from date of Invoice."
On the 18th December, 1968, the plaintiff company placed an order, referring to that quotation explicitly, "To supply adequate labour, plant and machinery to carry out complete the ventilated and non-ventilated ceilings at the above Contract, within the period stipulated in the Programme of Work and in full accordance with theappropriate form for nominated Sub-Contractors (R.I.B.A. 1965 Edition). All work to be carried out to the complete satisfaction of the Architect and in full accordance with our detailed Programme which can be inspected on site or at this office. All as your quotation" and then it gives the reference to the quotation of the 4th September to which I have referred.
It is common ground that the effect of this document was to constitute a contract between the plaintiff company and the defendant company as contractors and sub-contractors respectively in respect of the work detailed in the quotation. It transpires that in fact the R.I.B.A. do not have a form of contract between a contractor and a nominated sub-contractor, nor, indeed, do they have any form of contract which exists in a 1965 edition. So the words in brackets in the order are inappropriate.
The head contract in this case was in a form issued under the sanction of the R.I.B.A, and various other bodies. There is in existence a form of contract intended to be used by contractors and nominated sub-contractors when contracting interse, but that is a form which is not put out under the authority of the R.I.B.A., but of the national Federation of Building Trades Employers and the Federation of Associations of Specialists and Sub-Contractors, and is approved by the committee of associations of specialist engineering contractors. That form of contract has been referred to in the argument as "the Green Form", and it is convenient to use that term to identify it.
The plaintiff company issued a writ on a date which I do not know claiming damages for breach of the contract between themselves and the defendant company. Initially that was framed in a veryterse manner, but the endorsement on the writ has been amended, and the claim for damages is now set out in considerable detail and amounts in total to a sum of £10,284.52, and it is mainly, if not entirely, based upon the contention that the defendants failed to do the work which they were obliged to do in due time.
The plaintiffs launched an application under Order 14 for summary judgment. That was countered by the defendants with an application for a stay of the action on the ground that the written order incorporated the Green Form of contract, and that the Green Form of contract contains an arbitration clause. The application was for a stay of the proceedings in the action pending the dispute between the parties being referred to arbitration. The defendant company put in an affidavit in support of that application in which they stated that they denied that they were in breach of the contract, without further specifying the grounds upon which they denied liability. The reason that that was done was that they were anxious to avoid any possibility of its being said that they had put in an affidavit on the merits in response to the Order 14 summons, thereby taking a step in the action, something which they could not do if they wished to apply for a stay of execution under Section 4 of the Act.
The application was further supported by an affidavit of Mr. Atkins, who is the contracts administrator of a company which is a wholly owned subsidiary of Tarmac Limited, which is the parent company also of the defendant company. It does not appear that Mr. Atkins is an employee or an officer of the defendant company, but he gives the evidence which he does give as one who is an expert in the field of contracts of this nature. He says that he has beenspecialising in sub-contract work in the building industry for 41 years, and his evidence can be accepted as that of an expert on the subject. What he says is this: "I have no doubt that anyone in the industry would understand, as I understand, the words in full accordance with the appropriate form for nominated Sub-Contractors (RIBA 1964 edition)' appearing on the Plaintiff's order of the 18th December 1968 being Document 1 in Exhibit MEB 1 to refer to what is known as 'The Green Form' and is in fact the Sub-Contract being the third Document in the bundle MEB." He draws attention to the fact that the Green Form is headed: "For use where the Sub-Contractor is nominated under, the 1963 edition of the RIBA form of Main Contract," Then he says that it is correct that there is'no 1965 edition, but only a 1963 edition, of the Green Form, and he would understand that that was the document intended to be referred to. Since that affidavit was sworn on the 16th July, 1974, evidence has been put in in affidavit form by the plaintiff company, an affidavit of a Mr. Parry, but he does not deal with Mr. Atkins' affidavit in any way.
The question that we have to decide is whether this is a case in which there is an arbitration agreement between the parties, in which case' the action should be stayed pending arbitration, or whether it is not. It has been argued by Mr. Akenhead on behalf of the plaintiffs that here there is a doubt as to whether the Green Form is or is not imported; and he says that where a doubt exists there is good ground for the judge exercising his discretion under Section 4 in such a way as to allow the action to go on. For that purpose he -relies upon the decision of this court in London Sack and Bag Co. -v- Dixon & Lugton (1943 2 A.B.R. p. 753). There the plaintiff company bought from the defendant company 5,000 usedcotton flour bags, and on delivery complained that the goods were not up to description and claimed repayment, with interest and damages. There was no arbitration clause in the written contract, but the point was taken that both the parties were members of a company called United Kingdom Jute Goods Association Ltd., the articles of association of which provided that "all disputes arising out of transactions connected with the trade" - which the court treated as referring to the jute trade - "shall be...
To continue reading
Request your trial
-
The General Trading Company (Holdings) Ltd v Richmond Corporation Ltd
...or insensible when read in their new context”. This second rule broadly reflects the judgment of Buckley LJ in Modern Building Wales Ltd v Limmer and Trinidad Co Ltd [1975] 1 WLR 1281 at 1289. His Lordship stated: “Where parties by an agreement import the terms of some other document as pa......
- Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd
-
Heather Hill Management Company CLG v an Bord Pleanála
...of Contracts, 6th Ed'n 2015, §9.12 citing Sabah Flour and Feedmills v Comfez Ltd [1988] 2 Lloyds Rep 18 and Modern Buildings Wales Ltd v Limmer and Trinidad Co Ltd [1975] 2 All ER 549, [1975] 1 WLR 1281 at 129 — “Where parties by an agreement import the terms of some other document as pa......
-
Playa Larga (Owners of cargo lately laden on board) v I Congreso del Partido (Owners); Marble Islands (Owners of cargo lately laden on board) v I Congreso del Partido (Owners); I Congreso del Partido
...for a stay whether there is an effective arbitration clause: see Modern Building Wales Ltd. v. Limmer & Trinidad Co. LtdWLR. [1975] 1 W.L.R. 1281. For these reasons I have come to the conclusion that I have to decide the question of jurisdiction on the evidence before me. For the reasons I ......