Tobin Twomey Services Ltd v Kerry Foods Ltd

JurisdictionIreland
CourtSupreme Court
JudgeBLAYNEY J.
Judgment Date06 March 1996
Neutral Citation1996 WJSC-SC 2504
Docket Number356/95
Date06 March 1996
TOBIN & TWOMEY SERVICES LTD v. KERRY FOODS LTD
IN THE MATTER OF THE ARBITRATION
ACTS 1954- 1980
BETWEEN/
TOBIN AND TWOMEY SERVICES LIMITED
Plaintiff/Appellant

and

KERRY FOODS LIMITED AND KERRY GROUP PLC
Defendants/Respondents

1996 WJSC-SC 2504

356/95

THE SUPREME COURT

Synopsis:

ARBITRATION

Reference

Scope - Determination - Arbitrator - Powers - Extent - Absence of formal submission to arbitration - Parties nevertheless participated in arbitration process - Dispute about money payable to plaintiffs for work done by them for defendants - Work done pursuant to initial contract containing arbitration clause and pursuant to subsequent contracts - Interim award decided that subsequent works excluded from reference - Patent error on face of award - Proceedings remitted to arbitrator - Arbitration Act, 1954, s. 36 - (356/95 - Supreme Court - 6/3/96) - [1996] 2 ILRM 1

|Tobin & Twomey Services Ltd. v. Kerry Foods Ltd.|

Citations:

ROYAL INSTITUTE OF THE ARCHITECTS OF IRELAND ARTICLES OF AGREEMENT & CONDITIONS OF CONTRACT (1977)

ARBITRATION ACTS 1954–1980

ARBITRATION ACT 1954 S39

ARBITRATION ACT 1954 S36

PORTSMOUTH ARMS HOTEL LTD V ENNISCORTHY URBAN DISTRICT COUNCIL UNREP O'HANLON 14.10.94 1995/4/1501

ARBITRATION ACT 1954 S34

ARBITRATION ACT 1950 S22(1) UK

ARBITRATION ACT 1954 S36(1)

1

JUDGMENT delivered on the 6th day of March 1996by BLAYNEY J. [NEM DISS]

2

The plaintiff/appellant (to which I shall refer as the plaintiff) isan electrical contracting company carrying on business in the city of Cork. The first-named defendant/respondent (to which I shall refer as the defendant) is a company incorporated in England carrying on a food processing business at Poole in England. It is a wholly owned subsidiary of the second-named defendant/respondent which is the well-known public company incorporated in the State. The second-named defendant/respondent is not concerned with the issues which arise on this appeal.

3

The defendants" name was formerly W.L. Miller and Sons Limited, and it was under that name that it entered into a contract (hereinafter called the electrical services contract) with the plaintiff to have carried out certain electrical works at its factory at Poole. The contract incorporated the Royal Institute of the Architects of Ireland's Articles of Agreement and Conditions of Contract (1977 edition).The contract sum was £133,418.60 sterling or such other sum as would become payable by virtue of the said conditions.

4

The plaintiff commenced to carry out the works specified in the contract on the 6th February 1992, and the period within which the works were to be completed was six weeks.

5

When the plaintiff was engaged on the electrical services contract it was requested by the defendant to carry out additional works and it agreed to this and duly carried them out. The effect of taking on these additional works was that the plaintiff continued to work at thedefendants" factory until November 1992.

6

When all the works were completed, both those included in the original electrical services contract, and the additional works, a dispute arose between the plaintiff and the defendant as to the amount due to the plaintiff. Negotiations took place between the parties but theyfailed to reach agreement and on the 8th June 1994 the plaintiff's solicitors wrote to the defendants" solicitors claiming that there was in excess of £132,000 due to the plaintiff and they formally invoked the arbitration clause in the electrical services contract and asked the defendant to agree to any one of three named arbitrators. Thedefendants" solicitors agreed to Mr. Tim Sullivan of Messrs Dermot C. Coyle and Partners, chartered engineers. Mr. Sullivan was written to and by letter dated the 5th July 1994 sent to both solicitors he confirmed his acceptance of the appointment and suggested holding a preliminary meeting. The defendants" solicitors contended that such a meeting was premature as no submission to arbitration had yet been signed and they requested the plaintiff's solicitors to furnish a draft submission.

7

A draft was submitted by the plaintiff's solicitors on the 20thJuly 1994 and this was returned amended by the defendants"solicitors on the 11th August 1994. Further correspondence took place between the parties" solicitors in regard to the form of the submission, winding up with two fax transmissions on the 29th August 1994. It will be necessary at a later stage to consider some of the terms of the draft amended submission and all that need be stated at this stage is that no submission to arbitration was ever signed by either party and no submission was ever furnished to thearbitrator.

8

On the 10th August 1994 the plaintiff's solicitors sent to the arbitrator a document entitled "Arbitrator's AppointmentForm" signed on behalf of the plaintiff by two of its directors. The substance of this form was that the plaintiff, in consideration of the arbitrators having consented "to act as arbitrator in the disputes and/or differences which have arisen between the above-named claimant andrespondent in connection with the matters listed below"agreed jointly and severally with the respondent to pay the arbitrator's costs and expenses and to take up the award etc. The MATTER OF ARBITRATION was stated in the form to be:-

"Disputes arising under an electrical contract for the execution of works at Sterte Avenue, Poole, Dorset,England."

9

The arbitrator held a preliminary meeting with the parties on the 30th August 1994 and on the 8th September 1994 he sent to the parties his "order for directions No. 1" which contained inter alia the following directions:-

10

2 "1. That the respondent shall allow access to the claimant, at mutually agreed times, to inspect the factory at Poole, Dorset, England for the purpose of taking final measurements of the work done to enable him to complete a final account for the work.

11

2. That there shall be pleadings in this arbitration asfollows:

12

2 2.1 Points of claim are to be served on or before the 30th of September 1994.

13

3 2.2 Request for further and better particulars by the respondent, if any, is to be served on or before the 17th October1994.

14

4 2.3 A reply to the request referred to in 2.2 above is to be served on or before the 12th December 1994.

15

5 2.4 The final account for the work together with the full details of claims are to be served on or before the 12th December1994.

16

6 2.5 Points of defence are to be served on or before the 31st January 1995.

17

3. There shall be discovery of documents as follows:

18

2 3.1 Each party shall deliver to the other lists ofdocuments relating to issues in this arbitration as early as possible after the 30th September 1994.

19

3 3.2 Inspection of these documents shall take place immediately after the 31st January 1995."

20

Pursuant to these directions points of claim were delivered; particulars were sought and given; a defence was filed; discovery was made on both sides, and all the works carried out by the plaintiff were inspected by Mr. Finbarr Healy, a quantity surveyor, retained by the plaintiff.

21

On the 23rd February 1995 an offer was made by the defendant to the plaintiff "on a no prejudice basis and without admission ofliability". A copy of the offer was sent to the arbitrator in a sealed envelope. The form of the offer, excluding the amount being offered, was included in the correspondence exhibited in the affidavit of Mr. James Tobin, the managing director of the plaintiff. The offerwasentitled:

"Letter of offer.

In the Matter of the Arbitration Acts 1954and 1980Between Tobin and Twomey Services Limited, claimant and W.L. Miller and Son Limited, respondent.

And was made "in full satisfaction of all claims howsoever arising (save for costs to the date hereof) in the above entitledproceedings."

22

The arbitration commenced on the 22nd May 1995. Counsel for the defendant immediately raised the question of whether the additional works were included in the original electrical services contract which had been entered into in January 1992 or were the subject of separate subsequent contracts and the arbitrator decided to try this as a preliminary issue. After a hearing lasting seven days the arbitrator made an interim award on the 14th June 1995. As the precise terms of this award need to be considered in deciding theissues which arise on this appeal, it is neccessary to set it out infull:-

WHEREAS:
23

1. By contract entered into on or about the 28th day of January 1992 between the claimant and the respondent, the claimant agreed to carry out certainworks known as the electrical services contract for the respondent which included the installation of electrical cables, conduits and cable trays with the supplying, mounting and fixing of power supply cables for equipment and the new extension to the rear of the respondents"existing factory at Sterte Avenue, Poole, Dorset, England.

24

2. The form of contract was stated in the specification for the works to be the "1977 edition (amended) issued by the Royal Institute of Engineers of Ireland) which was later amended to read "The Royal Institute of Architects of Ireland".

25

3. During the course of the work and after its completion the claimant carried out additional works for the respondent which have been identified as follows:

26

(a) Provision of panels for RP1 and RP4 and panels for LP1 andEP2.

27

(b) Supply and installation of a 1,500 KVAtransformer.

28

(c) Work carried out on behalf of Mr. M. Cruz, factory maintenance manager at Poole.

29

(d) Work carried out in the bonded cold store area and the dispatch area.

30

4. Certain disputes arose between the parties concerning the method of payment for the whole of the works carried out by the claimant and the parties did appoint me, Timothy S. Sullivan of 81 Ranelagh Road, Dublin 6, to be arbitrator in the reference which appointment I...

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