Taunton-Collins v Cromie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARSON,LORD JUSTICE SALMON |
| Judgment Date | 24 March 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0324-5 |
| Date | 24 March 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0324-5
In The Supreme Court of Judicature
Court of Appeal
From His Honor Mr normen Richards OFFICIAL RHPHREE
The Master of the Rolls (Lord Denning),
Lord Justice Pearson and
Lord Justice Salmon
MR. D. WRIGHT (instructed" by Messrs. Simpson, North, Harley & Co., Agents far Messrs. Collins. Dryland & Thorowgood. Henley-on-Thames) appeared as Counsel on "behalf of the Appellants (Second Defendants).
MR. M. FINER, Q. C. (instructed "by Messrs. Hicks, Arnold & Co.) appeared as Counsel on behalf of the Respondent (Plaintiff).
THS MASTER OF THE BOLLS: In this case a Major Taunton-Collins wanted to build a house. He employed an architect, Mr. Robert Cromie, and contractors, S. Green & Sons (Contractors) Limited. The building contract was in the ordinary R.I.B.A. form. It included the usual provisions as to the supervision by the architect; and clauses providing that, if there was defective work, the architect could order it to be put right, and so forth. Furthermore, there was an arbitration clause which provided that "in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor", - and then after several intervening words which I need not read - "such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be appointed ". That was a contract between the building owner and the contractors. The architect was not a party to it.
The house was built, but the building owner, after it was built, found that it was unsatisfactory. Some of the guttering, he said, was totally inadequate to function properly and had to be rebuilt. He said that the plaster walls were so constructed that they cracked and let in the water. He took advice from another architect, and in consequence he proceeded to issue a Writ against his own architect, Mr. Cromie. He alleged that the architect had broken his duty in badly designing the house and in not keeping proper supervision over the builders. The architect, in his Defence, denied the allegations: and went on to allege that, in two respects, it was the fault of the builders. The faulty guttering was due, he said, to the failure of the builders to carry out his design. He said that, if the plaster walls were unsatisfactory, it was the builders fault and not his. The action was referred to an Official Referee. Soon afterwards Major Taunton-Collins, on advice, joined the contractors, the builders, as additional Defendants and chargedagainst them the faults which the architect had spoken to. The contractors applied to the Official Referee to stay the proceedings as against them. They said that under the arbitration clause in the contract the dispute so far as they were concerned between the building owner and themselves - ought to be referred to arbitration. The Official Referee, considering the matter, in the exercise of a discretion which is given by the Arbitration Act, refused to stay. The contractors now appeal to this Court.
The matter is of considerable importance. There are a great number of contracts in the R.I.B.A. form, but there is very little authority on this point. It seems to me most undesirable that there should be two proceedings in two separate tribunals – one before the Official Referee, the other before an Arbitrator - to decide the same questions of fact. If the two proceedings should go on independently, there might be inconsistent findings. The decision of the Official Referee might conflict with the decision of the Arbitrator. There would be much extra cost involved in having two separate proceedings going on side by side; and there would be more delay. Furthermore, as Mr. Finer pointed out, if t. iis action before the Official Referee went on by itself - between the building owner and the architect - without the builders being there, there would be many procedural difficulties, for instance, there would be manoeuvres as to who should call the builders, and so forth. All in all, the undesirability of two separate proceedings is such that I should have thought that it was a very proper exercise of discretion for the Official Referee to say that he would not stay the claim against the builders. Everything should be dealt with in one proceeding before the Official...
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