Robert Davis Workman, Trading as Workman and Company v The Belfast Harbour Commissioners

• Jurisdiction: Ireland
• Judgment Date: 04 February 1899
• Date: 04 February 1899
• Docket Number: (1898. No. 18,110.)
• Court: Queen's Bench Division (Ireland)

ROBERT DAVIS WORKMAN, TRADING AS WORKMAN AND CO.

and

THE BELFAST HARBOUR COMMISSIONERS

(1898. No. 18,110.)

Q. B. Div.

Contract containing arbitration clause — Action — Motion to stay the action on the ground that the matters in dispute come within the arbitration clause —— Fraud — Construction of contract.

Davis v. StarrELR 41 Ch. D. 242.

Forwood v. Watney and Another 49 L. J. (N. S.) Q. B. 447.

Harrison and Another v. LayENR 13 C. B. (N. S.) 528.

Imhof and Another v. SuttonELR L. R. 2 C. P. 406.

In re Hohensollern Actien Gesellschaft and the Contract CorporationUNK 54 L. T. (N. S.) 596.

Ives & Barker v. WillansELR [1894] 2 Ch. 478.

Joplin v. PostlethwaiteUNK 61 L. T. (N. S.) 629.

Lawson v. Wallasey Local Board 52 L. J. (N. S.) Q. B. 302.

Moyers v. SoadyUNK 18 L. R. Ir. 499.

Piercy v. YoungELR 14 Ch. D. 200, 208.

Randegger v. Holmes and Others Ibid. 679.

Renshaw v. Queen Anne Residential Mansions and Hotel Company LimitedELR [1897] 1 Q. B. 662.

Russell v. PellegriniENR 6 E. & B. 1020.

Russell v. RussellELR 14 Ch. D. 471.

Seligmann v. Le BoutillierELR L. R. 1 C. P. 681.

Thorburn v. Barnes Ibid. 384.

Thorn v. Mayor and Commonalty of London 1 A. C. 120.

Turnock v. SartorisELR 43 Ch. D. 150.

Vawdrey v. SimpsonELR [1896] 1 Ch. 166.

Walmsley v. White 40 W. R. 675.

Walmsley v. WhiteUNK 67 L. T. (N. S.) 433.

Willesford v. WatsonELR L. R. 8 Ch. App. 473.

234 THE IRISH REPORTS. [1899. Q. B. Div. ROBERT DAVIS WORKMAN, TRADING AS WORKMAN 1899. AND CO. v. THE BELFAST HARBOUR COMMIS Jan. 26, 30. 1 SIONERS (). Feb. 1, 4. (1898. No. 18,110.) Contract containing arbitration clause—Action—Motion to stay the action on the ground that the matters in dispute come within the arbitration clause Common Law Procedure Act (Ireland), 1856, s. 14—Fraud—Construc tion of contract. On a motion to stay an action, on the ground that the matters in dispute come within a clause in a contract for the execution of works agreeing to refer matters in dispute, arising in the settlement of the accounts, to arbitration, the construction of the clause is for the Court. The Court will not stay the action, where it is of opinion :—(1) That the plaintiff is suing upon substantial and bona fide causes of action, which do not come within the clause ; or (2), That there are serious and difficult questions of law involved in the action, not proper to be submitted to the deterÂmination of an arbitrator ; or (3), That a cause of action based upon fraud, actual or constructive, is bona fide sued -upon ; or (4), That, in the exercise of its judicial discretion, it ought not to refer the matters in dispute to arbiÂtration. Moyers v. Soady (18 L. R. Ir. 499) and Vawdrey v. Simpson ([1896] 1 Ch. 166) followed. MOTION on behalf of the defendants for an order pursuant to the 14th section of the Common Law Procedure (Ireland) Act, 1856, that all proceedings in this action may be stayed, and that all matters in dispute therein be referred to the arbiÂtration and decision of W. H. Preece, the President of the InstiÂtution of Civil Engineers, in accordance with the memorandum of agreement dated the 1st October, 1895, between the plaintiff and defendants, and that the said agreement be received and made a rule of Court. On the 1st October, 1895, the plaintiff entered into a contract with the defendants to do certain work for them, in connexion with their " New Branch Dock," for a stipulated sum. The plain (11 Before BOYD and KENNY, T3. Vol,. II.] QUEEN'S BENCH DIVISION. tiff completed the works and handed them over to the defendants on the 1st November, 1897. He subsequently sent in a claim for £49,285 98. 6(1. over and above the contract price agreed upon. The defendants, save as to a sum of £1700, disputed this claim, and put forward a counterclaim amounting to £10,000 for penalties for delay and other matters. The defendants, besides putting forward this counterclaim, contended that all the matters in dispute between them and the plaintiff should be referred to arbitration, pursuant to clause 14 of the contract, which was as follows :—" 14. The mode of execution and the workmanship and materials shall be to the entire satisfaction of the engineer of the Commissioners, who shall have power to place an inspector over each department of the works. If any dispute or difference shall arise between the commissioners and the contractor, during the progress of the works with reference to the meaning of the contract, or as to the execution of the works, or as to the quality of the materials used, or the execution of any alleged extras, or the materials used in the execution thereof, or as to the amount or value of the said alleged extras, or of the deductions to be made by reason of any alterations or omissions, or otherwise in any way relating to the premises, the same shall be referred to, and shall be decided by, the engineer; but, after the completion of the works all disputes and differences between the parties arising in the settlement of the accounts shall be referred to the President for the time being of the Institution of Civil Engineers, whose decision shall be final and binding on all parties." The plaintiff contended that the bulk of his claim was on foot of causes of action, which were outside this clause, but, expressed his willingness to submit to arbitration under a subÂmission giving a more extended reference. The defendants refused to accept the more extended reference offered by the plaintiff. The plaintiff then issued the writ in this action in the month of Dec., 1898, claiming the above-mentioned sum of £49,285 9s. 6d. for extras, and as damages for breaches of contract, breach of warranty, negligence and fraudulent concealment of material facts by the defendants, and for the defendants' wrongful obstrucÂtion of the plaintiff, in the course of carrying out the contract. The defendants moved to stay the action pursuant to the above notice. The facts and circumstances giving rise to the plaintiff's 236 THE IRISH REPORTS. [1899. Q. B. Div. claim and this action are fully set out in the judgment of Mr. 181)9. Justice Kenny. The Attorney-General (The Right Hon. John Atkinson, Q. C.), and Gordon, Q.C. (Campbell, Q. C., and Bates, with them) for the defendants : The action should be stayed. All the causes of action come within the clause of reference and are capable of being referred. The claim for fraud is not bona fide, and is introduced merely to oust the jurisdiction of the Court. This is shown by the conduct of the plaintiff and the...