“Thank you for your faxed draft of the order and DOM\2 agreement. Comments as follows … 8. Part 15. Since your fax is a numbered document I do not see the need to incorporate what you say here. However, I am still unhappy that the document properly reports the basis of our pricing. I understood what you are saying as an objection to us incorporating our schedule of information we received from White, Young Green for tender purposes in that you currently do not have access to their files to check it is comprehensive. Although I can assure you that we are not deliberately concealing anything. Accordingly, for the avoidance of doubt I would like this statement incorporated here. “Certain information was provided on behalf of the contractor to the sub-contractor by White, Young Green as noted in the contractor’s facts of 19/04/01. It is agreed that where and to the extent that the final design information, supplied by the contractor or his consultant, differs from that information previously supplied, as noted above, then the sub-contract sum will be adjusted”. … Regards Jack Kirk.”
“The parties hereby agree and consent, pursuant to Sections 45(2)(a)and 69(2)(a)of theArbitration Act 1996 , that either party may (upon notice to the other party and to the Arbitrator): .1 apply to the courts to determine any question of law arising in the course of the reference; and .2 apply to the courts on any question of law arising out of an award made in an arbitration under this Arbitration Agreement.”
“62.1 The evidence of Kendrick is that there was no partnering agreement but that Kershaw and Kendrick worked hand in hand as a team, to prepare the tender. This is borne out by the evidence of Mr O’Connor, who attended several meetings with the design team, made requests for information and eventually arrived at a situation where Kershaw had sufficient information to submit a compliant tender. Had the parties not been working as a team Kershaw’s only obligation would have been to price the information which was provided, specifically exclude all other information and submit a non-compliant tender, with appropriate exclusions. 62.2 I am therefore of the view that in the preparation of the tender, Kendrick and Kershaw worked as a team, together with WYG, the designer. 63. I set out below my findings in relation to the arrangements between the parties pre-tender. 63.1 The design was done by WYG. In order to prepare a design WYG took the ER’s, the Specification, the Room Data Sheets, the Architect’s Drawings, the Mechanical Drawings, extrapolated the necessary information and produced schematic drawings, sketches and component lists to enable the works to be priced by Kershaw. The above facts are not disputed by the parties. 63.2 Kershaw used such information to prepare its tender sum. Prior to submission of the tender, Kershaw attended meetings with the design team at which it requested further information to enable it to provide a compliant tender. At the date of the tender, Kershaw was satisfied that it had been provided with sufficient information to provide a compliant tender. The above facts are supported by the evidence of Mr O’Connor. 63.3 The information provided by WYG did not contain details of every pipe run, valve, union, volume control damper or access door. Indeed, not every floor of the building was designed. Where such information was not shown on a drawing or in a schedule, Kershaw used its initiative as an experienced mechanical installations Sub-Contractor to include for such ancillary equipment, which was not shown on the schematic drawings, sketches or schedules, but which was an essential part of a complete system, without which the system would not operate. The above facts are substantiated by the factual evidence of Mr Kirk and Mr O’Connor and the expert evidence of Mr Standley. While the evidence of Mr King does not support the above facts, I prefer the factual evidence of Mr Kirk and Mr O’Connor in this regard. 63.4 In addition to the drawn and scheduled information, Kershaw was to have regard to the ER’s, the specification and the Room Data Sheets in order to provide a compliant installation. For example the above ground drainage was not drawn but it was described and due allowance was made in Kershaw’s tender. Another example was a requirement for the diversion of existing services which was not shown on a WYG drawing, but was shown on a CPW drawing, which formed part of the ER’s and due allowance was made for this in Kershaw’s tender. The above facts are supported by the factual evidence of Mr Kirk and Mr O’Connor and the expert evidence of Mr Stanley. 63.5 Kershaw submitted a compliant tender.”
“66. The above however, must be considered in the context that while not all the detail was shown on the information provided by WYG, Kershaw had an obligation to include the components which were an essential part of the drawn or described installation in order to make it compliant. Therefore in the event that RWG in the final design drew or described a component which was an essential part of the WYG design, but which had not been drawn or described by WYG, this clearly cannot be a variation under the Qualification which warrants an adjustment to the Sub-Contract sum, as allowance should have been made in Kershaw’s compliant tender, for such components or equipment. 67. In my view there is no hard and fast rule which can be applied across the board in order to ascertain whether or not a variation is under the terms of the Qualification. Each variation must be considered on its merits based upon my paragraphs 65 and 66 of this Decision. 68. I will therefore, when deciding Kershaw’s entitlement to additional payment under the Qualification, carry out an analysis in order to firstly ascertain whether or not the information necessary to include the item in the tender was available from the information provided by WYG at the time of tender. In the event that I find that the claimed item was not contained within the information provided by WYG, I will then ascertain whether the information was available from any other source at the time of tender and whether Kershaw as an experienced mechanical services Sub-Contractor should have included the claimed item on the grounds that although it was not drawn or described, it was an essential component which was necessary to provide a compliant installation. 69. In the event I find that the claimed item was not shown on the WYG information, or was not shown on other information, or could not reasonably have been implied as necessary to provide a compliant system, or has increased in size or capacity from that shown on or implied from the WYG information, I will find that the claimed item is a variation under the Qualification and arrive at a fair and reasonable adjustment to the sub-Contract sum. 70. On the other hand in the event I find that the claimed item was not shown on the WYG information but could have been obtained from other available information or was necessary to provide a compliant installation, I will find that the claimed item is not a variation under the Qualification and make no adjustment to the Sub-Contract sum.”
“1. On the true construction of the Qualification is the Qualification intended to permit an adjustment where the final design information differs from the information supplied by White Young Green? 2. Does the Qualification permit adjustments for items which would have been allowed for in the tender if Kershaw had been tendering on a design and build basis? 3. Does the fact that Kershaw did not expressly qualify its tender or raise areas of uncertainty in March 2000 preclude Kershaw from recovering an adjustment under the Qualification for items omitted by WYG? 4. Is the Qualification in fact more restrictive than the ordinary variation clause or less restrictive?”
“Whatever may have been the misconception of practitioners as to the applicable practice in the Official Referees Court before Foleys case was decided in March 1997, it should now be clear to experienced practitioners in the TCC that extraneous materials are not to be referred to in arbitration appeal leave applications. It is also important to stress that such materials are not admissible in the hearing of appeals on questions of law arising out of awards, particularly since many construction arbitration appeals are brought without the applicant first having had to obtain the leave of the court. This is because many construction contracts contain an arbitration clause that provides the parties’ joint consent to an appeal being brought without the need to first obtain the leave of the court.”
“First it is pointed out by the charterers that the arbitrator is not a commercial man, but is instead a lawyer of long experience. Hence, so it is said, the Court should be more ready than in many cases to substitute its own view of the correct solution, than if he had, for example, been a ship broker. I recognize that in the context of some types of dispute there might be force in such a submission. For example, if the issue concerned a matter of judgment in a field where long practical experience was of the essence, a judge might feel that he was just as well or ill equipped to establish the correct “bracket” as would be a legally trained arbitrator: whereas he would be much more cautious if the arbitrator himself possessed the necessary experience.”
“As a matter of general approach, the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye, endeavouring to pick holes, inconsistencies and faults in awards, and with the objective of upsetting or frustrating the process of arbitration. Far from it. The approach is to read an arbitration award in a reasonable and commercial way, expecting, as is usually the case, that there will be no substantial fault that can be found with it.”
“For my part, like the learned Judge, I am most reluctant to reverse or differ from a trade tribunal. Nevertheless, the issue is one of construction and thus of law. The arbitrator’s finding of fact is part of the contractual matrix and a very important part, but it is no more than that. There is no suggestion that the process of shipment under an f.o.b contract for sugar or indeed contracts for the sale of sugar generally are in any relevant respect different from contracts for the sale of some other soft commodity. All that is said is that those engaged in the sugar trade find strict punctuality difficult, which may well be true of other trades not to mention other individuals, and that in practice they adopt a more relaxed attitude. This seems to me to be quite insufficient to displace the construction which would usually be placed upon a term involving inter-dependent obligations in relation to the time for loading, reinforced, as it is in the present case, by the use of the imperative words, “at latest”.”
“I should be very slow to differ from a trade tribunal on the meaning reasonably to be given to telex exchanges of the sort in issue here. Ultimately, of course, the construction of any written instrument is a question of law on which the Court is entitled and bound to rule, but the significance of a meaning attributed by the reasonable non-lawyer varies widely from instrument to instrument and according to the circumstances of the case. Here, one is dealing with communications by trader to trader, in the context of an unexpected and fast moving situation. A trade tribunal brings to the task of interpretation certain insights denied (to a greater or lesser extent) to the Court: an informed appreciation of the commercial situation as it unfolded, seen through the eyes of a trader; an understanding of the hopes and fears and pressures which moved traders at the time; an awareness of the extent to which, at the time, the future course of events appeared obscure and unpredictable; a knowledge of the language which one trader habitually uses to another. So, in a case such as this the court’s task is not one of pure construction and I should be reluctant to differ from the board unless it appeared that the board’s construction was fairly and plainly untenable.”
“Starting therefore with the proposition that the Court is concerned to decide, on the hearing of the appeal, whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as at present, the answer is to be found by dividing the arbitrator’s process of reasoning into three stages. (1)The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute. (2) The arbitrator ascertains the law. This process comprises not only the identification of all the material rules of Statute and Common Law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached. 3. In the light of the facts and the law so ascertained, the arbitrator reaches his decision. In some cases the third stage will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In other instances, however, the third stage involves an element of judgment on the part of the arbitrator. There is no uniquely “right” answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong. The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer whereas the arbitrator has arrived at another: and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct - for the Court is then driven to assume that he did not properly understand the principles, which he had stated. Whether the third stage can ever be the proper subject of an appeal, in those cases where the making of a decision does not follow automatically from the ascertainment of the facts and the law, is not a matter upon which it is necessary to express a view in the present case.”
“This is an appeal under s.1 of the Arbitration Act, 1979 on “a question of law arising from an arbitration award”
“102.5.4. While the information was not drawn by WYG, there is a clear reference to the heating in the ER’s and Kershaw, as an experienced Mechanical Installation Sub-Contractor should have realised, even if it did not see the relevant part of the ER’s, that heating would be required, and ask the question, prior to submitting its bid. 102.5.5. Having found that Kershaw had an obligation to have regard to the requirements of the ER’s as well as the drawn information, I must find that the relevant information was available at tender stage and therefore, an allowance should have been included.”