“His responses to many of Mr. Stead’s questions were evasive and as his examination proceeded I formed the opinion that his objective was to protect his company in the arbitration proceedings, and thus he avoided direct answers to questions that might expose RBA’s shortcomings. As will be evident from other parts of this award, on the evidence I have concluded that the ADP/TDP left much to be desired as designed, and I have little reservation in concluding that the design team that Mr. Bourne established for the preparation of these designs was neither sufficiently experienced nor, I regret to say, sufficiently supervised.” (c) Paragraph 117 RBA’s project manager, Mr. Gerard Brennan, was described by the Arbitrator as ‘a convincing witness’ who ‘clearly had a significant positive impact on the design process after he joined the A13 team’. (d) Paragraph 118 In contrast, the Arbitrator was concerned with Mr. Hambly, the design engineer. He said that Mr. Hambly had joined RBA from university as a graduate engineer and his first job was the structural design work for the A13. He went on: “Mr. Hambly answered Mr. Stead’s questions with confidence and zeal. He struck me as an intelligent individual with an enthusiasm for engineering. However, from his testimony I became increasingly concerned that he had been left to his own devices in preparing the TDP and all his intelligence and enthusiasm could not compensate for the inevitable lack of experience of a graduate engineer. As parties are aware, I sought comments from the expert witnesses on this very matter during the hearing.” (e) Paragraph 124 The Arbitrator, when commenting on RBA’s experience, concluded that: “Its experience in externally prestressed pre-cast bridge design was relatively light, RBA never having actually been the designer on an externally prestressed pre-cast bridge similar to the A13. In such a situation it would not be unusual for RBA to have engaged - either as sub-consultant or by employment - persons who did possess the right level of experience in the particular field of bridge design that was being considered. They did not do this.” (f) Paragraph 126 On the crucial question of expert evidence the arbitrator was unequivocal in his view. “The determination of this case primarily concerned the credibility and competence of the expert evidence. I found Mr. Nicholson an entirely convincing witness. His pedigree was impeccable and I quickly became satisfied that he had the knowledge and experience required of an expert in this relatively new area of bridge design and construction. He understood the duties of a designer working for a contractor during tender preparation, and I found this of particular importance. He was subjected to some extremely testing cross-examination by RBA’s extremely competent counsel [Mr. Sears Q.C.] but hardly waivered from his consistent and well-presented viewpoint. His answers were complete and easy to understand and not once did I get the impression that he was loading his opinion in favour of one party at the risk of being unfaithful in his duty of impartiality to the tribunal. I was not so convinced with Mr. Farooq in his evidence. First I had doubts as to his expertise in the field of externally prestressed pre-cast glued segmental bridge design, which this case is about. He did appear to be more of a generalist bridge engineer than a specialist designer. I was concerned over the differences in his CVs and over his limited experience in preparing alternative tender designs under design and construct contracts. In contrast to Mr. Nicholson, throughout Mr. Farooq’s evidence I had the impression that by the nature of his responses he was defending RBA’s position rather than giving me his independent expert views in response to Mr. Stead’s able and searching questions. Consequently, I have found it more difficult to accept Mr. Farooq’s evidence than I have found in accepting Mr. Nicholson’s. (g) Paragraph 127 As to buildability of the TDP, the Arbitrator said: “I find this word to be in need of definition for the purposes of this award, and I define it herein as meaning more than a physical or dimensional incompatibility … I consider the issue of buildability in the context of the TDP as being more one of whether, if built, the bridge would safely have been capable of construction within the constraints and provisions of the contract and, if constructed, would have withstood the live loading and dead weight that was to be imposed upon it. Thus buildability is more a performance issue than merely a physical or dimensional one.” (h) Paragraphs 128-129 The Arbitrator devoted some time to the design size of the anchor/deviator block within the TDP. This was a key element of the viaduct construction because these blocks either anchored or diverted the cables which gave the bridge its structural strength. DMD said that a deviator block designed at 1200 mm, the length they said that was shown in RBA’s sketches, would never have worked. RBA said that the 1200 mm shown on those sketches was an error and the correct size was 1500 mm when scaled from drawings. They also said that it was never their intention to base the TDP on 1200 mm blocks. The Arbitrator concluded that this was a central issue. He said: “The deviator block was dimensioned at 1200 mm but scaled 1500 mm. The deviator block was of fundamental importance in the design of the bridge and this incompatibility between dimension and scale measurement indicates to me that RBA was not as alert as they should have been to the significance of this crucial feature. Evidence was given as to whether a stated dimension or a scale measurement was the correct way of determining the size of the construction element. I have no hesitation whatsoever in deferring to the view that stated dimensions take precedence over scale measurements … After considerable deliberation I have concluded as a matter of fact that on the evidence available to me the TDP included a 1200 mm deviator block and I reject the suggestion that it was designed at 1500 mm. As the parties will realise, this finding has a significant bearing on the outcome of this arbitration.” (i) Paragraphs 112 and 143 The Arbitrator made specific findings on the meeting of the 7th November and the letter of the 13th January. As to the meeting, he concluded, at para.112, that the meeting did take place on the balance of probabilities and that it was of an informal nature. As to the letter of the 13th January, he found, at para.143, that that letter was of significance. He said “This letter sets out the rationale behind the changes being made at that time by RBA. The letter does not state that these various changes were as a result of DMD’s requests or post-TDP requirements, and I see that omission as indicative at that time that RBA was not blaming DMD as the reason that changes were made. I am drawn to the inevitable conclusion that the letter, being at the end of the concept design phase, was RBA’s explanation of why it had, primarily at its own instigation, caused the design changes to be made. This fits in entirely with my other findings as to the true reason behind the changes set out above.” (j) Paragraph 143 (latter part) The Arbitrator then went on immediately in para.143 to conclude, in general terms, how and why the TDP had been changed. He said: “I concur with DMD that as RBA realised in late 1996 that the TDP was inadequate, DMD should have been advised immediately, and decisions might then have been made that could in some measure have safeguarded DMD’s commercial exposure. Instead I find that RBA’s approach was to make design changes to rectify the inadequacy of the TDP without properly notifying DMD of the reasons behind such changes, and then to state that the design had developed to such an extent that reversion to earlier design approaches was impractical. My view, based on the evidence, is that reversion was not merely impractical but impossible as by that time RBA knew that the TDP was unbuildable but for obvious reasons was disinclined to admit this. I find RBA negligent in failure to advise DMD of the true situation at the appropriate time.” (k) Paragraph 144-153 These parts of this section of the Award are concerned with the Arbitrator’s findings on specific allegations against RBA, such as delay in completing the detailed design, further complexity, difficulties with reinforcement fixing and the like. It is unnecessary for me to set out these passages in this part of the Judgment. (l) Paragraph 154 In referring to the TDP and the Final Design, the Arbitrator was again clear. In this paragraph he said: “It is clear to me that the Final Design comprised a far more robust and ‘beefy’ design than that contained in the TDP. As I have stated above, I am satisfied that this beefing up of the design was as a result of Mr. Brennan, on behalf of RBA, finding that the TDP design was not viable or realistically buildable and needed to be strengthened before construction began. I find no evidence of significance to support any other finding. Furthermore, I find that the need to redesign the viaduct superstructure was the supervening cause for delays to DMD, in segment manufacture and viaduct construction. By this I do not mean to say that DMD was perfect in all its construction activities, and there is some evidence that does indicate to me that DMD took longer to reach optimum pre-cast segment output than with better pre-cast site supervision and control it might have done. However, in arbitration and litigation it is the dominant cause that needs to be ascertained, and in this case I find the recurring culprit to be the redesign of the viaduct structure by RBA.” (m) Paragraph 156 The Arbitrator found that the SPQ prepared by RBA contained “numerous inadequacies … in that it did not reflect what was in the event the design necessary to comply with the contract requirements, namely the final design, and consequently there was a breach of the contractual obligations imposed upon RBA”
“… refused or failed – (i) properly to conduct the proceedings … and a substantial injustice has been or will be caused to the applicant.”
“(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…. (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.”
“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) … (d) Failure by the tribunal to deal with all the issues that were put to it … (f) Uncertainty or ambiguity as to the effect of the award … (h) Failure to comply with the requirements as to the form of the award….”
“To my mind, the predominant cause of the delay to construction was the necessity for RBA to redesign the viaduct as a result of its own shortcomings.”
“It follows that if the appellate process is to work satisfactorily the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained, but the issues, the resolution of which were vital to the judge’s conclusion, should be stated and the manner in which he resolved them explained… It does require the judge to identify and record those matters which were critical to his decision.”
“The first question that arises is what is meant by ‘all the issues that were put to it’ in section 68(2)(d), the failure to deal with which would constitute the procedural irregularity. The words must be construed purposively. In my judgment, it does not mean each and every point in dispute. That has never been part of the judicial or arbitral function … In my judgment, ‘issues’ certainly means the very disputes which the arbitration has to resolve. In this case the dispute was about the open market rent for this property. The arbitrator decided that. In order fairly to resolve that dispute the arbitrator may have subsidiary questions, issues if one likes, to decide en route. Some will be critical to his decision. Once some are decided, others may fade away.”
“29. I do not accept the proposition that simply because the award contains an error which is unfair to a party there must have been a failure to comply with section 33 on the part of the tribunal, and thus a serious irregularity for the purposes of section 68(2)(a). First, there is nothing in the Act to suggest that it intended to allow the court to intervene to put right mistakes of fact or law which could not have been put right under earlier legislation. The Act was intended to “restate and improve the law in relation to arbitration”, and in view of the well established policy of the courts to intervene only in cases where there has been some unfair treatment or result which warranted intervention, the grounds must remain limited. Secondly, such a proposition, if correct, would enable a dissatisfied party to challenge an award on the grounds of an error of fact or of law under section 68(2), and thereby to open up the whole course of the arbitral proceedings so as to invite the court to conclude that there was some unfairness, whereas it is in my view plain from the Act that the only method of appealing against a decision as such is provided by section 69 (appeal on point of law). Whilst there will be occasions when there is an overlap between an appeal under section 69 and a challenge under section 68, the latter should not be used as an indirect method of appealing against a decision of fact other than in an exceptional case. Thirdly, section 33 is primarily concerned with the tribunals failure to conduct the proceedings fairly and impartially, and although a failure to comply with section 33 is placed first in section 68(2), it is, in reality, more in the nature of a general provision of which section 68(2) contains further examples … 30. Similarly, section 68(2)(d) is not to be used as a means of launching a detailed inquiry into the manner in which the tribunal considered the various issues. It is concerned with a failure, that is to say, where the arbitral tribunal has not dealt at all with the case of a party, so that substantial injustice has resulted, e.g. where a claim has been overlooked or where the decision cannot be justified as a particular key issue has not been decided which is crucial to the result. It is not concerned with a failure on the part of the tribunal to arrive at the right answer to an issue. In the former instance the tribunal has not done what it was asked to do, namely, to give the parties a decision on all the issues necessary to resolve the dispute or disputes (which does not of course mean decisions on all the issues that were ventilated but only those required for the award). In the latter instance the tribunal will have done what it was asked to do (or will have purported to do so) but its decision or reasoning may be wrong or flawed. The arbitral tribunal may therefore have failed to deal properly with the issues but it will not have failed to deal with them.”
“I do not consider that section 68(2)(d) requires a tribunal to set out each step by which they reach their conclusion or deal with each point made by a party in an arbitration. Any failure by the arbitrators in that respect is not a failure to deal with an issue that was put to it. It may amount to a criticism of the reasoning but it is no more than that.”
“The test [of substantial injustice] is not what would have happened had the matter been litigated. To apply such a test would be to ignore the fact that the parties have agreed to arbitrate, not litigate. Having chosen arbitration the parties cannot validly complain of substantial injustice unless what has happened simply cannot, on any view, be defended as an acceptable consequence of that choice. In short, section 68 is really designed as a long stop available only in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that injustice calls out for it to be corrected.”
“I have read with care the evidence given by Mr. Brennan, both written and oral, and where Mr. Brennan remained as loyal to his employers as he could his evidence indicates how he found it necessary to increase the number of anchorages and deviators from that shown on the TDP because he considered that the design prepared prior to his involvement was not buildable in the form shown, and certain critical issues had not been adequately addressed. He did what he had to do, and that was to redesign the viaduct such that it could be built and would comply with the contractual requirements. As every good engineer should he got the engineering right, and this had devastating consequences on the commercial and contractual situation of DMD.”
“The tribunal may, on its own initiative, or on the application of a party – (a) correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award …”
“I have omitted from this award narrative that I consider as superfluous to the actual issues in dispute – that is professional negligence on the part of RBA.”
“The parties should rest assured that I have been through all the evidence and the transcripts carefully, and taken due account of this material in formulating this award.”
“(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings … (2) An appeal shall not be brought under this section except … (b). with the leave of the court. (3) Leave to appeal shall be given only if the court is satisfied – (a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that on the basis of the findings of fact in the award – (i) the decision of the tribunal on the question is obviously wrong … (d). that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.”
“The arbitrators plainly erred in their approach on this aspect, yet it must be borne in mind that their decision was not one of pure law, it was a question of mixed law and fact. In such a situation their error in approach is not by itself decisive. It is still necessary to consider whether their actual decision in all the circumstances falls outside the permissible range of solutions open to arbitrators.”
“The obligation to provide an SPQ for a bridge that can be built to the Contract requirements stands alone. There were numerous inadequacies in the SPQ in that it did not reflect what was, in the event, the design necessary to comply with the Contract requirements, namely the Final Design, and consequently there was a breach of the contractual obligations imposed upon RBA.”
“It would be taking contractual compliance too far to expect the SPQ to be absolutely correct in every aspect.”
“67. … I hope and believe that I am not over-simplifying if I record the impression that the plaintiffs’ main hope was that I would be persuaded to find in their favour simply by the size of the gap, absolutely and proportionately, between the cost estimate and the successful tender. 68. The gap was indeed enormous. It astonished and appalled the parties at the time and it astonishes me. I do not see, however, how that alone can carry the plaintiff home. There is no plea or argument that the maxim ‘res ipsa loquitur’ applies. Culpable underestimation is of course one obvious explanation of such a discrepancy, but far from the only one. The successful tender was not the lowest. The contractor may have over-specified from an excess of caution, or to obtain a greater profit, or suit the drilling equipment available or for some other reason. Market conditions may have changed or may have been subject to some distortion outside the knowledge and foresight of a reasonably competent professional adviser. These possibilities are not mutually exclusive amongst themselves or as between them and Arrup’s negligence, but without evidence on which I can make a finding as to the sum which Arrup acting with due care and skill should have advised … I am not in a position to find that negligence was even one of the causes.”
“RBA was remiss and negligent in not having carried out strut and tie calculations at the time the ADP and TDP were being considered.”
“The buttressed segments contained reinforcement which was of such complexity and volume that the segments were not capable of being manufactured in an economically viable manner. During the course of segment manufacture RBA revised the reinforcement design of the anchor deviator blocks, thereby improving the buildability of the buttress segments.”