Tobin & Twomey Services Ltd v Kerry Foods Ltd
| Jurisdiction | Ireland |
| Judge | Miss Justice Carroll |
| Judgment Date | 06 October 1995 |
| Neutral Citation | 1997 WJSC-HC 2375 |
| Court | High Court |
| Docket Number | No. 5698p/1995 |
| Date | 06 October 1995 |
1997 WJSC-HC 2375
THE HIGH COURT
BETWEEN
Citations:
COMPANIES ACT 1986 S17
ARBITRATION ACT 1954 S36
ARBITRATION ACT 1954 S39(1)
ARBITRATION ACT 1954 S39(2)
PORTSMOUTH ARMS HOTEL LTD V ENNISCORTHY UDC UNREP O'HANLON 14.10.94 1995/4/1501
COUNTYGLEN PLC V CARWAY 1995 1 IR 208, 1995 1 ILRM 481
POWERSCOURT V GALLAGHER 1984 ILRM 123
Synopsis:
ARBITRATION
Reference
Scope - Determination - Arbitrator - Powers - Fraud - Allegation - Proof - Absence - Scope of reference properly determined by arbitrator - Arbitration confined to dispute arising from work performed pursuant to initial contract containing arbitration clause - Additional work performed pursuant to other contracts - No misconduct by arbitrator in confining reference to initial contract - Arbitration Act, 1954, ,ss. 36, 39 - (1995/5698 P - Carroll J. - 6/10/95)
|Tobin & Twomey Services Ltd. v. Kerry Foods Ltd.|
Judgment delivered by Miss Justice Carroll delivered the 6th day of October, 1995.
The facts of this case are:- The Plaintiff company tendered for electrical work in premises at Poole, Dorset, England owned by W. & L. Millar and Sons Limited (the first Defendant) a company incorporated in the U.K. and a wholly owned subsidiary of Kerry Group Plc (the second Defendant). It changed its name to Kerry Foods Limited on the 25th February, 1994. The contract was made about the 28th January, 1992 and the form of contract was (by amendment) agreed to be the 1977 edition building contract issued by the Royal Institute of Architects in Ireland. The contract sum was £133,418.60 or such other sum as became payable under the contract. Clause 38 provided for arbitration in case of dispute or difference arising "as to the construction of the contract or as to any matter or thing arising thereunder or as to the withholding by the architect of any certificate to which the contractor may claim to be entitled."
The duration of the contract was to be about six weeks. The Plaintiff carried out additional works being
(a) provision of panels for R.P.1 and R.P.44 and panels for L.P.1 and E.P.2,
(b) supply and insulation of 1500 K.V.A. transformer,
(c) work carried out on behalf of the factory maintenance manager at Poole, and
(d) work carried out in the bonded cold store area and dispatch area (for convenience these are collectively referred to as the "additional works").
These increased the duration of the Plaintiff's involvement to nine months.
Disputes arose about payment in respect of the totality of the works, the Plaintiff having been paid £227,888. The Plaintiff claimed an additional £289,661. The Defendants say that the total sum due under the electrical services contract is £139,153.75 and this has been paid. Mr. O'Neill says that total value of the works still to be agreed on the 7th February, 1994 was £10,352.14.
By letter dated the 8th June, 1994 to the Defendants” solicitor referring to the execution of certain works, the Plaintiff's solicitor invoked the arbitration clause under the "said contract" and required that all disputes under that contract be referred to arbitration.
The Plaintiff's solicitor wrote to the proposed Arbitrator, Mr. O'Sullivan, on the 22nd June, 1994 saying the Plaintiff, inter alia, was in dispute with the first Defendant under the conditions of contract of the Royal Institute of Architects of Ireland regarding monies due to them arising from the execution of works at the Sterte Avenue, Poole, Dorset. He said the claim was in respect of a contract for £133,418 sterling and the dispute was in respect of the sum in excess of £132,000. He asked the Arbitrator to accept the reference.
A copy of this letter was sent to the Defendants” solicitor as a "proposed" letter though in fact it was sent to the Arbitrator. The Defendants” solicitor did not agree to the contents of the "proposed" letter and sent their own draft asking that if it was in order to send it to Mr. O'Sullivan. He also enclosed a letter dated the 28th June, 1994 confirming that the Defendant consented to the Arbitrator acting.
The Plaintiff's solicitor did not agree with the Defendants” draft but nevertheless sent the consent to the appointment to the Arbitrator. The Defendants” solicitor wrote on the 29th June to say it was improper to set out the prospective claimant's claim before the appointment of the Arbitrator and before a submission to arbitration had been agreed. The Arbitrator wrote on the 5th July, 1994 referring to the letter of the 22nd June, 1994 from the Plaintiff's solicitor and the letter of the 28th June, 1994 from the Defendants” solicitor. He confirmed acceptance of the appointment and set out his fees.
A request from the Plaintiff for inspection facilities was met with a request from the Defendant to furnish a submission to arbitration. A draft submission to arbitration by the Plaintiff was sent on the 20th July, 1994 to the Defendants” solicitor. An arbitration appointment form was completed by the Plaintiff and sent to the Arbitrator on 10th August, 1994. This refers to the Arbitrator consenting to act as Arbitrator "in the disputes and/or differences in connection with the matters listed below". This refers to the section headed "The Matter of Arbitration". This is "disputes arising under an electrical contract for the execution of works at Sterte Avenue, Poole, Dorset, England.
A draft submission to arbitration was submitted by the first Defendant. There was some agreement on amendments but it was never finally agreed and was never sent to the Arbitrator. A statement of claim (i.e. points of claim) dated the 4th October, 1994 refers to the contract of the 28th January, 1992 and claims that the works comprised in the contract included the additional works.
In points of defence delivered in February 1995 paragraphs 9 and 10 specifically aver that the works carried out in the bonded cold storage area or dispatch area were carried out pursuant to separate and distinct contracts between the Claimant and Respondent.
Paragraph 117 specifically avers that the Respondent tendered competitively and separately for an electrical panel contract and a transformer contract which did not form part of the main electrical services contract.
Paragraph 118 specifically avers that any extra works carried out pursuant to the electrical panel contract and transformer contract had no connection with the main electrical services contract.
Paragraph 124 specifically avers that it entered into further contracts with the Claimant for the performance of other works after the main contract was completed and these did not form any part of the main electrical services contract.
Paragraph 130 specifically avers that the main electrical services contract was completed on the 31st May, 1992 and all works done after that date were done pursuant to separate contracts.
The first Defendant makes a counterclaim in relation to work done on the main electrical services contract. At paragraph 142 it claims there was a separate panel contract. At paragraph 147 it claims there was a separate transformer contract and at paragraph 152 claims there was a separate bonded cold store contract. Damages for breach of these three contracts and/or misrepresentations were also claimed.
Around the same time the defence was delivered, the Defendants made a sealed offer to lapse after ten days in satisfaction of all claims howsoever arising in the proceedings (save costs to date).
The reply disclaims knowledge of the separate contracts referred to in the defence.
The arbitration commenced on the 22nd May, 1995 and the first Defendant's Counsel raised the preliminary issue of what works were included in the main electrical services contract. Mr. Tobin for the Plaintiff says in his affidavit that they were taken by surprise and were made aware for the first time of the Defendants” claim that the Arbitrator did not have jurisdiction to determine disputes relating to all the work carried out by the Plaintiff. He claims that there was no doubt or suggestion but that the Arbitrator would decide all issues between the parties. He refers to the pleadings and to discovery and to the fact that inspection was afforded of all the areas worked on by the Plaintiff.
After seven days hearing commencing on the 26th May, 1995 the Arbitrator made an interim award dated the 14th June, 1995 in which he found that the additional works did not form part of the electrical services contract and he directed that those works be excluded from the reference.
The first Defendant acknowledges that this effectively removes its counterclaim except insofar as it deals with the main electrical contract.
Mr. Tobin said the Plaintiff considered it prudent to continue with the arbitration. The Plaintiff's claim was revised downwards on the 15th June, 1995 from £426,000 to £276,948. On the 13th June Mr. Tobin commenced giving evidence for the Plaintiff. He gave evidence in chief for eight days. On the 6th July the Plaintiff indicated it was going to issue various writs against the Defendants” consulting engineers, the first Defendant and the second Defendant but the arbitration continued.
On the 7th July, 1995 the Plaintiff asked the Arbitrator for an adjournment saying new disturbing facts had emerged which could not be disclosed. The arbitration resumed on the 18th July. On the 21st July the proceedings in this action were outlined to the Arbitrator.
The arbitration now stands adjourned until next Monday after 29 days at hearing.
Mr....
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