Taylor Woodrow Construction v RMD Kwikform Ltd [QBD (TCC)]
| Jurisdiction | England & Wales |
| Judge | Ramsey J. |
| Judgment Date | 17 April 2008 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 17 April 2008 |
Queen's Bench Division (Technology and Construction Court).
Ramsey J.
Andrew Bartlett QC (instructed by Kennedys) for the claimant.
David Thomas QC (instructed by Interserve plc) for the defendant.
The following cases were referred to in the judgment:
Atlanska Plovidba v Consignaciones Asturianas SA (The Lapad) [2004] 2 CLC 886.
Nea Agrex SA v Baltic Shipping Co Ltd (The Agios Lazaros)ELR [1976] QB 933.
Seabridge Shipping AB v AC Orssleff's Eftf's A/S [2000] CLC 656.
Construction law — Arbitration — Commencement of arbitration — Sub-contract for design, supply and erection of scaffolding — Collapse of scaffolding into adjoining roads and onto railway line — Sub-contract terms did not amount to agreement as to when arbitral proceedings to be regarded as commenced — Contractor's letter not sufficient notice to commence arbitration — Arbitration Act 1996, s. 14.
This was an application under s. 32 and 45 of the Arbitration Act 1996 to determine a preliminary point of law and jurisdiction in relation to arbitral proceedings between the claimant, TWC, and the defendant, RMD.
TWC retained RMD to design, supply and erect scaffolding at Queen Street, Cardiff. In December 2000 the scaffolding collapsed into adjoining roads and onto a railway line. That led to a claim by TWC against RMD for some £600,000. In turn, RMD claimed some £180,000 from TWC as sums due under the subcontract. There was correspondence between the parties concerning the claim and potential claims from third parties. In January 2003 TWC's solicitors wrote a letter to RMD, enclosing draft particulars of claim, and asking whether RMD wished to rely on its contractual right to proceed by way of arbitration or would be agreeable to the matter being litigated.
Clause 26.1 of the contract provided: “If any dispute question or difference arises between the Contractor and Sub-Contractor in connection with or arising out of the Sub-Contract or the Sub-Contract Works, it shall, subject to the provisions of this clause, be referred to the arbitration and final decision of a person to be agreed between the parties or failing such agreement within a period of 14 days of one party giving to the other notice in writing of such dispute question or difference, a person appointed upon the application of either of the parties by the President for the time being of the Chartered Institute of Arbitrators.”
TWC commenced High Court proceedings against RMD in December 2006 and RMD applied to stay those proceedings for arbitration under s. 9 of the Arbitration Act 1996. TWC then applied to the Chartered Institute of Arbitrators for the unilateral appointment of an arbitrator by the President. RMD took the point that TWC had not served a notice of arbitration in accordance with the contract. TWC relied on the letter of January 2003 as a notice to commence an arbitration claim under the contract. An arbitrator was appointed and the parties agreed that the court should determine whether he had been properly appointed, and, for the purposes of s. 14 of the 1996 Act, the date at which arbitral proceedings were regarded as having been commenced (if at all).
TWC submitted that clause 26.1 amounted to an agreement under s. 14(1) of the 1996 Act as to when arbitral proceedings were to be regarded as commenced for the purposes of the Arbitration and Limitation Acts; under clause 26.1 it was agreed that an arbitration commenced when one party gave the other party “notice in writing of such dispute question or difference”; that was a sufficient agreement for the purposes of s. 14(1).
Held ruling accordingly:
1. If the parties agreed that arbitral proceedings would be commenced on receipt by the other party of a notice referring disputes to arbitration, that was sufficient to be an agreement under s. 14(1). First, by stating that arbitral proceedings should be commenced by a particular action, the provision would be stating when arbitral proceedings were to be regarded as commenced. Secondly, so far as the requirement that the agreement must relate to commencement for the purposes of the 1996 Act and the Limitation Acts, there did not need to be an express reference to those purposes.
2. Clause 26.1 did not amount to an agreement as to when arbitration proceedings were to be regarded as commenced. It made no mention of when arbitration proceedings were to be commenced or regarded as commenced. There was no agreement that the notice was the commencement or to be regarded as the commencement of arbitral proceedings. Such an agreement could not be inferred from clause 26.1 in the absence of some express words. It would be possible for the agreement of an arbitrator or the appointment of an arbitrator to be the commencement of arbitral proceedings. The parties had agreed a procedure leading to the appointment of an arbitrator but had not agreed that a particular step in the procedure was to be regarded as commencement of arbitral proceedings.
3. In the absence of any agreement as to when arbitral proceedings were to be regarded as commenced, s. 14(2) provided for that situation. In this case, the primary method of appointment was for the arbitrator to be appointed by the parties and therefore s. 14(4) was the appropriate provision. It provided that in such circumstances, arbitral proceedings were commenced when one party served on the other notice in writing requiring him to agree to the appointment of an arbitrator.
4. The letter of January 2003 was not sufficient to commence arbitral proceedings under s. 14(4). The letter did not make it objectively clear that TWC was referring the dispute to arbitration or that, by implication or otherwise, TWC was requesting RMD to commence the process of agreement of an arbitrator. In the result, the arbitrator was not validly appointed.
Ramsey J:
1. This is an application under s. 32 and 45 of the Arbitration Act 1996 to determine a preliminary point of law and jurisdiction in relation to arbitral proceedings between the Claimant, Taylor Woodrow Construction Limited (“TWC”) and the Defendant, RMD Kwikform Limited (“RMD”).
2. The underlying sub-contract between TWC and RMD was entered into in October 2000 and related to the design, supply and erection of scaffolding works at Fanum House, 140 Queen Street, Cardiff. On 13 December 2000 there was a collapse of scaffolding into adjoining roads and onto a railway line.
3. This led to a claim by TWC against RMD for some £600,000 and to the conviction of RMD at Cardiff Crown Court in relation to offences concerning the state of the scaffolding. In turn, RMD claims from TWC about £180,000 as sums due under the sub-contract.
4. In 2002 there was correspondence between Kennedys (solicitors for TWC), the group insurance manager of Interserve plc acting on behalf of RMD and loss adjusters, concerning the claim and potential claims from third parties such as Railtrack and...
To continue reading
Request your trial
-
Bulk & Metal Transport (UK) Ltd v VOC Bulk Ultra Handmaz Poll LLC
...Orsleff's EFTS A/SUNK[1999] 2 Ll Rep 685; [2000] CLC 656 (cited in Taylor Woodrow Construction v RMD Kwikform LtdUNK[2008] 2 Ll Rep 345; [2008] 1 CLC 793 by Ramsey J at para. 34), Thomas J stated at p. 690; 662: ‘Section 14 should, in my view, be interpreted broadly and flexibly. A strict a......