Modern Engineering (Bristol) Ltd v C. Miskin & Son Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DUNN |
| Judgment Date | 11 July 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0711-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1980 |
| Docket Number | 1980 M. No. SJ223 |
[1980] EWCA Civ J0711-6
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of -Justice
Queen's Bench Division
Commercial Court
(Mr. Justice Goff)
The Master of the Rolls Lord Denning)
and
Lord Justice Dunn
MR. A. MAY, Q. C. and MR. J. MARRIN (instructed by Messrs. Laytons) appeared on behalf of the Applicants (Appellants).
MR. J. BLACKBURN (instructed by Messrs. Braby & Waller) appeared on behalf of the Respondents.
This is an unfortunate case. Both parties acknowledge that an arbitrator has made a grave error in the course of the proceedings. The question is whether the court should remove him. In 1972 the Bedfordshire County Council were going to build a new police station at Luton. Far this purpose they entered into an agreement with main contractors - the big firm of Miskins - to build the new police station for the sum of £887,567. It was on the usual RIBA form applicable to local authorities. It made provision for nominated sub-contractors to be used for certain parts of the work. In this particular case Miskins placed a sub-contract with a firm called Modern Engineering Limited of Bristol whereby Modern Engineering were to provide and erect the steelwork for the sum of £41,095.
The work went ahead. Modern-Engineering Limited completed their steelwork by the 7th February, 1973.
The police station was erected. It has been working for a long time now. But there have been disputes between many of those concerned. Miskins have made a claim against their sub-contractors Modern Engineering Limited. They claim the sum of a quarter of a million pounds as damages for delay and defective work. In answer to the claim for delay, Modern Engineering Limited rely on a certificate; given by the architect. It certified that the sub-contract work "ought reasonably to have been completed by the 7th February, 1973". And so it was. It was completed within the reasonable time which the architect had certified. In reliance on that certificate, Modern Engineering (the sub-contractors) say that they are not liable for delay.
The dispute was referred to arbitration. The appointment of an arbitrator was left to the President of the Royal Institute of Chartered Surveyors. He were delivered. There was discovery of documents. The case came on before the arbitrator for hearing on Monday, 23rd Dune, 1980.
The events of that week are quite important. Counsal for Miskins proceeded to open his case on that day. He explained that a point of law was in issue in the proceedings, namely as to the affect of the architect's certificate. Couldit be re-opened or not? Miskins said the certificate could be re-opened Modern Engineering said it could not. When the point was raised by counsel for Miskins, leading counsel for Modern Engineering was asked whether he was taking that point. He said that he was. He said that Miskins could no longer claim for that period of delay. He made it quite clear, therefore, that that point of law was very much in issue. Then this is what happened:
"… Counsel for Miskins concluded this part of his opening by mentioning to the Arbitrator the possibility that he might wish to take independent legal advice on the point of law and urging him to feel free to do so." That is how it was left on that Monday. On the are was said on the point. The arbitrator took the Wednesday off. He said he would sit again on the Thursday.
As I say, that point of law was clearly raised: it was not argued: but left to be considered later after counsel for Modern Engineering had made his submissions.
I am afraid that the arbitrator then fell into error. Although it was made plain by counsel on both sides that the point had still to be argued and considered, nevertheless, during that day off (the Wednesday), the arbitrator seems to have gene home and considered the position. Whether he took any legal advice, I do not know. Then, on the Thursday morning, at the very opening of the proceedings he produced what may be called an "award". It was headed quite formally "In the matter of the Arbitration Act 1950 and in the matter of an arbitration". It contained a recital about the agreement. It stated that the point had been raised. It was called "a question of fact" - that was clearly wrong. It then said:
"NOW I J. S. Clarke having considered the arguments put to me and having studied the documents and reports drawn to my attention and having given much thought to the question am of the opinion that it is within my authority as contemplated by the Arbitration provisions in the said Agreement to open up, review or revise such Certificates".
So there it is. He made a formal declaration or an "interim award", as itwas called, in favour of Miskins - holding that they were able to re-open the certificate, He did so without having heard the arguments of modern Engineering on the matter. Yet counsel for Modern Engineering had made it perfectly clear that it was a point he wished to argue before the arbitrator.
In the course of the discussion hare this morning Mr. May for Modern Engineering has drawn our attention to authorities which, according to him, are very much in his favour: to show that this certificate cannot be re-opened. I will not go into that point of law further,...
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