Road Management Services (a 13) Plc v London Power Networks Plc
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Forbes,Mr Justice Forbes |
| Judgment Date | 23 May 2003 |
| Judgment citation (vLex) | [2003] EWHC J0523-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: HT 0361 |
| Date | 23 May 2003 |
[2003] EWHC J0523-2
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Forbes
Case No: HT 0361
Andrew White QC and Simon Hughes (instructed by Masons) for the Claimant
David Thomas QC and Matthew Holt (instructed by Lewis Silkin) for the Defendant
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Hearing dates: 27 th and 31 st March 2003
Approved Judgment
Introduction . By its CPR Part 8 Claim Form dated 25th1 February 2003, supported by its Part 8 Details of Claim, the Claimant, Road Management Services (A 13) plc (hereafter "RMS"), commenced proceedings against the Defendant, London Power Networks plc ("LPN"), in which it identified the dispute that has arisen between the parties, in connection with certain works carried out to re-route or divert a substantial number of electrical circuits, and the relief that is sought by RMS, in the following terms:
" Summary of Dispute between the Parties.
12. In the circumstances set out above, a dispute has arisen between the Claimant and the Defendant as to whether the Diversionary Works are governed by:-
(i) the New Roads and Street Works Act 1991 ("NRSWA 1991") as the Claimant contends; or
(ii) the Public Utilities Street Works Act 1950 ("PUSWA 1950") as the Defendant contends.
Summary of Relief Sought by the Claimant
13. The Claimant claims in these proceedings a Declaration that the Diversionary Works commenced in or about January 2001 are for all purposes governed by NRSWA 1991, including, without limitation to the foregoing, confirmation that the cost sharing provisions introduced under Section 85 of NRSWA 1991 apply."
The background to RMS' claim is an issue as to who is responsible for the utility costs for re-routing, diverting or relaying certain underground apparatus (pipes, cables etc) owned by LPN ("the diversionary works", to which reference is made in paragraph 13 of the Details of Claim quoted above) that has been rendered necessary by the road improvement works ("the road improvement works") carried out to the highways that lie above the apparatus in question.
In this particular application, LPN seeks a stay of the proceedings pursuant to section 9 of the Arbitration Act 1996 ("the 1996 Act") which, so far as material, provides as follows:
"9. (1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter,
….
(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void inoperative, or incapable of being performed."
It is common ground that, once it is shown that a matter raised in legal proceedings is to be determined by arbitration pursuant to an arbitration agreement, the stay of proceedings is mandatory unless the party wishing to proceed in court can establish that the arbitration agreement is null and void, inoperative or incapable of being performed: see section 9(4) of the 1996 Act.
As it happens, this application is not concerned with an arbitration agreement as such, but with the relevant statutory provisions for reference to arbitration that are to be found in the following sections of the two Statutes with which these proceedings are concerned, namely section 31(2) of the Public Utilities Street Works Act 1950 ("PUSWA") and section 96(3) of the New Roads and Street Works Act 1991 ("NRSWA"), as to which two sections, see below. However, where a matter is referred to arbitration by statutory provision, section 94(1) of the 1996 Act provides that:
"94. (1) The provisions [of the Arbitration Act] apply to every arbitration under an enactment ("a statutory arbitration"), whether the enactment was passed or made before or after the commencement of this Act, subject to the adaptations and exclusions specified in section 95 to 98."
Of the various adaptations and exclusions relating to statutory arbitrations, for which provision is made in sections 95 to 98 of the 1996 Act, it is only necessary to refer to section 96(2), which is in the following terms:
"96. (2) In section 30(1) (competence of tribunal to rule on its own: jurisdiction), the reference in paragraph (a) to whether there is a valid arbitration agreement shall be construed as a reference to whether the enactment applies to the dispute or difference in question."
Section 30(1)(a) of the 1996 Act provides that the arbitrator may rule on the issue whether there is a valid arbitration agreement, as follows:
"30 Competence of tribunal to rule on its own jurisdiction
(1) Unless otherwise agreed by the parties the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to -
(a) whether there is a valid arbitration agreement …"
The Factual Background. RMS is a joint venture company and was, at all material times, the party named as "DBFO Co" in a Design Build Finance and Operate Contract concluded between RMS and the Secretary of State for the Environment, Transport and the Regions dated 12th April 2000 ("the Contract"). The Contract provided for RMS to procure certain works and services comprising, in general terms, the upgrade and subsequent maintenance of five junctions along the A13 in East London ("the road improvement works"); i.e. the junctions at Iron Bridge/Canning Town, Prince Regent's Lane, Old Roding Bridge, Movers Lane and Woolwich Manor Way. The road improvement works were envisaged to have, and did have, a very substantial impact upon the electricity supply apparatus in the area. This, in turn, gave rise to the need to carry out the diversionary works to LPN's apparatus.
On 22nd May 2000, the A13 was designated a GLA Road, from the boundary of London to its junction with Braham Street, pursuant to section 14A(2) of the Highways Act 1980 and paragraph 2 of the GLA Roads Designation Order 2000. As a consequence of that designation and pursuant to section 1(2A) of the Highways Act 1980, Transport for London ("TfL") became the relevant Highway Authority. By operation of section 415 of the Greater London Authority Act 1999, TfL replaced the Secretary of State in the Contract.
As the result of the road improvement works, it became necessary to re-route a substantial number of electrical circuits (this work has already been referred to as "the diversionary works"). The most extensive of these was at the junction with Woolwich Manor Way and required the repositioning of twelve major cables (together with their associated protection circuits) over a distance of about a mile, in order to accommodate the necessary road improvement works to the A13. The diversionary works have been carried out in two packages, under contracts entered into between January 2001 and January 2002. Works under the first package (for Iron Bridge/Canning Town, Prince Regent Lane, Old Roding Bridge and Movers Lane) commenced in February 2001. The works under the second package (for Woolwich Manor Way) commenced in January 2002. As I understand it, the works under both packages are still continuing.
Between 1950 and 1992, the position with regard to the attribution of responsibility for the utility costs of re-routing underground apparatus, made necessary by the execution of works to the highway, was governed by the provisions of PUSWA 1950. However, since 1993, a new statutory regime has been in place under the provisions of NRSWA 1991. For the purposes of these proceedings it is necessary to consider both statutory schemes.
Necessary Utilities Works —The Two Statutory Schemes . I now turn to consider the relevant provisions of the two statutory schemes.
PUSWA 1950 . Part II of PUSWA is the relevant part of the statute and is headed "CODE TO HAVE EFFECT WHERE APPARATUS IS AFFECTED BY ROAD, BRIDGE OR TRANSPORT WORKS". Cases in which the code is to have effect are specified in section 21, the opening words of which are as follows:
"21. (1) The next two succeeding sections and the Fourth Schedule to this Act (in this Act referred to as "the code in this Part of this Act") shall have effect, subject to the provisions of section twenty-four of this Act as to time of operation, in cases in which undertakers' apparatus to which this section applies in a street, or in controlled land abutting on a street, is affected by -
(a) any of the following works executed for road purposes by, or on behalf of the Minister a county council, or the council of a borough or urban district, that is to say-
reconstruction or widening of the street …;or
(b) replacing, reconstruction or substantial alteration of a bridge which carries or goes over the street …; or
(c) substantial works … required for the purposes of a transport undertaking and executed in property … which the street crosses or is crossed by …"
As Mr David Thomas QC put it on behalf of LPN (see paragraph 9 of Mr Thomas' written skeleton argument), the general principle underlying Part II of PUSWA is that "he who disturbs, pays". In other words, it is the highway authority (referred to in the Act as "the promoting authority"), whose works to the road made the works to the utility apparatus necessary, that has to pay the costs of the utility (referred to as "the undertaker"): see section 22 of PUSWA, which provides as follows:
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