Brenkstone Ltd v Apex Construction Company Ltd et Al

• Jurisdiction: Anguilla
• Judge: Edwards, J.
• Judgment Date: 17 July 2002
• Neutral Citation: AI 2002 HC 8
• Docket Number: 74 of 2001
• Date: 17 July 2002
• Court: High Court (Saint Christopher, Nevis And Anguilla)

High Court

Edwards, J.

74 of 2001

Brenkstone Limited

and

Apex Construction Company Limited et al

Appearances:

Mr. Elson Gaskin, counsel for the appellant.

Mr. Keithley Lake and Mrs. Cora.

Richardson Hodge; counsel for respondent.

Practice and Procedure - Appeal against award under s.68 of the UK Arbitration Act concerning disputes arising from their interpretation of the scope of the work to be done by the contractor — Appeal premature as the appellant had not exhausted the available arbitral process under s.57 — Appeal dismissed.

Edwards, J.

1 Arbitration and Arbitral Proceedings in Anguilla are governed by the provisions of Parts I and Part IV of the Arbitration Act, 1996 (U.K.) Chapter 23 which have been incorporated into the Laws of Anguilla by virtue of the Arbitration Act Cap. 105 of the Revised Statues of Anguilla 2000.

2 The right to Appeal against an award made by a Tribunal in arbitral proceedings is given by Section 58 of The Arbitration Act, 1996 (U.K.) Chapter 23 (the 1996 U.K. Act) which provides:–

“58-(1) Unless otherwise agreed by the parties, an award made by the Tribunal pursuant to an Arbitration Agreement is final and binding both on the parties and on any persons claiming through or under them.

(2) This does not affect the right of a person to challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Part. [Part I consists of Sections 1 to 84 of the 1996 U.K. Act] “

3 This is an Appeal under Section 68 of the 1996 U.K. Act, against the award of the Arbitral Tribunal, concerning certain disputed issues between the parties arising from their interpretation of the scope of the work to be done by the Contractor under a Written Agreement for the Construction of a Residence at Barnes Bay in Anguilla.

SECTION 86 OF THE 1996 U.K. ACT

4 Section 68 States –

• “(1) A party to arbitral proceedings may (upon notice to the other parties and to the Tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the Tribunal, the proceedings or the award……..

• (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant-

  • a) failure by the Tribunal to comply with section 33 (general duty of Tribunal);

    [Section 33 –

    ‘1) The Tribunal shall:–

    • (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent; and

    • (b) adopt procedures suitable to the circumstances of the particular case avoiding unnecessary delay or expense so as to provide a fair means for the resolution of the matters falling to be determined.

• (2) The Tribunal shall comply with that general duty in conducting the Arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it'].

  • (b) the Tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: See section 67);

  • (c) failure by the Tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;

  • (d) failure by the Tribunal to deal with all the issues that were put to it;

  • (e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers;

  • (f) uncertainty or ambiguity as to the effect of the award;

  • (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;

  • (h) failure to comply with the requirements as to the form of the award; or

  • (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the Tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

• (3) If there is shown to be serious irregularity affecting the Tribunal, the proceedings or the award, the court may:–

  • (a) remit the award to the Tribunal, in whole or in part, for reconsideration,

  • (b) set the award aside in whole or in part, or

  • (c) declare the award to be of no effect, in whole or in part.

The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the Tribunal for reconsideration….”

5 Section 105 of the 1996 U.K. Act defines “the court” to mean “the High Court…”

6 PART 60 of the Civil Procedure Rules 2000 regulates the procedure for such appeals and PART 60.2(1) stipulates that the Appeal should be made by issuing a Fixed Date Claim Form which must be annexed to the Grounds of Appeal.

7 The Fixed Date Claim Form and the Grounds of Appeal filed on the 18th December 2001 appeal against and challenge “the whole of the award of the Arbitration Tribunal Mr. Sanjay Amin as Arbiter and Mr. Claudel Romney and Mr. Desmond Maynard as outside representatives for the appellant and the respondents respectively, published on the 4th day of December 2001 but communicated to the appellant on the 5th day of December 2001.”

GROUNDS OF APPEAL

8 The Grounds on which the Appeal and challenge are made are that:–

• “1) The Arbitration Tribunal failed to comply with the requirements of section 37 of the Arbitration Act 1996………. in that;

  • (a) The Tribunal had improper ex-parte communication with the respondents herein and or Witnesses on behalf of the respondents without making the appellant privy to said communications.

  • (b) The Tribunal improperly received evidence from the respondents after the close of the hearing without notice to appellant thereby denying the appellant the opportunity to object to the admission of the said evidence; to cross-examine the respondents', Witnesses on the said evidence or to present rebuttal evidence in relation thereto.

  • (c) The Tribunal wrongfully withheld and or concealed an expert legal opinion despite written and verbal requests for same to be disclosed to the appellant as a result of which the appellant was denied the opportunity to comment on such legal –opinion as permitted by the Arbitration Act, 1996…… the said opinion was favourable to the appellant and the wrongful withholding thereof was arbitrary, capricious, and demonstrates bias on the part of the Tribunal.

  [Section 37 of the 1996 U.K. Act empowers the Tribunal to appoint experts or legal advisers to report to it and the parties, and also to appoint assessors to assist it on technical matters. This section further permits such an expert, Legal Adviser or Assessor to attend the proceedings and ‘the parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by any such person].

• 2) The Tribunal exceeded its power under the Agreement to arbitrate in that the Tribunal:

  • a) Failed to publish its award in the time limited for it to do

  • b) Made an award with respect to a Claim which was not pursued before the Tribunal.

• 3) The Tribunal failed to conduct the hearing in accordance with the procedure agreed by the parties in that it was agreed that the appellant's and the respondents' outside Representatives would decide the issues and the Arbiter (Mr. Sanjay Amin) would decide only such matters as were in dispute between the outside Representatives. Contrary to this Agreement the Arbitrator assumed to himself the full power to decide all the issues in dispute between the parties.

• 4) The Tribunal failed to decide the issues that were placed before it by the appellant for determination in that the Tribunal failed to deal with the following questions namely:

  • a) was the Contractor required to plaster the walls and ceilings as indicated by the Contract Drawings?

  • b) was the Contractor required to construct soffits as indicated by the Contract Drawings?

  • c) Did the Contract require the steel to be wrapped in plaster in accordance with a detail to be furnished by the Architect to the Contractor and/or as indicated on the Contract Drawings?

  • d) If the Contractor failed to supply sufficiently skilled labour, was the Contractor liable to the Owner for the additional labour costs associated with the construction of the arches and the installation of window trim and cornices as indicated on the Contract Drawings?

  • e) Did the Contract require the installation of all veneer stone as shown on the Contract Drawings, including the cornices and window trims?

  • f) Was it the Contractor's responsibility to estimate the quantity of materials and labour required for the completion of the work; and more particularly the square footage of the stone to be...