Price & Anor v Carter (t/a Ian Carter Building Contractors) [2010] EWHC 1451 (TCC)

Case No HT-10-137[2010] EWHC 1451 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/06/2010
Before
THE HON MR JUSTICE EDWARDS-STUART
Between
Paul PriceClaimantsElizabeth PriceClaimantIan Carter (t/a Ian Carter Building Contractors)Defendant
Ben Beaumont (instructed by the Claimants) for ClaimantsSerena Cheng (instructed by Follett Stock LLP) for DefendantsHearing Hearing date: 10 June 2010
JudgmentIntroduction
[1]This is an application for permission to appeal, if required, under section 69 of the Arbitration Act 1996 (“the Act”) and to extend the time pursuant to CPR 62.9 for appealing against the award under section 69 and for challenging the award under sections 67 and 68 of the Act, if such an extension of time is necessary (which is in issue).[2]By an order dated 26 April 2010 Ramsey J directed that the application for permission to appeal should be heard either at the start of or at the hearing of the substantive appeals on 10 June 2010. During the course of the hearing I told the parties that I would reserve judgment on the questions of permission for leave to appeal, the application to extend time and in relation to the substantive appeals. One of the reasons for doing this was, as I have indicated, that the issues in dispute included the questions of whether the Claimants (“Mr and Mrs Price”) required permission under section 69 at all and whether they needed an extension of time.[3]The award against which the appeal is made is that of Mr James Middleton-Stewart RIBA, FCIArb, issued on 8 March 2010. The dispute that was referred to him arose out of a contract made between Mr and Mrs Price and the Defendant (“Carter”) for the demolition of a bungalow and the construction of a new house at Carlyon Bay, St Austell, Cornwall.[4]The contract was based on the JCT Minor Works Building Contract 2005 Edition, Revision 1 (2007) and the price was £226,000. The contract was dated 23 November 2007. Very shortly afterwards Carter started to carry out the work. The completion date was 26 May 2008. The work was delayed and on 24 July 2008 Mr and Mrs Price took possession of the site. Carter was granted an extension of time of 9 weeks up to that date, but no further extension of time was granted. The architect certified that Practical Completion was achieved on 18 February 2009.[5]During the later part of 2008 there were discussions between the parties as to how they should resolve the disputes that had by then arisen. Mr and Mrs Price wanted to negotiate a settlement of the dispute on the grounds that this would be the least expensive way of reaching a successful conclusion. The contract provided for the resolution of disputes by both adjudication and arbitration, but in the Contract Particulars the nominated adjudicator was the architect, who was also the Contract Administrator. Unsurprisingly, perhaps, by the time disputes had arisen Carter had misgivings about having the architect as the adjudicator.[6]On 24 December 2008 Carter's solicitors, Follett Stock, served a Notice of Arbitration on Mr and Mrs Price. The parties did not agree on the choice of arbitrator and by a letter dated 17 February 2009 Mr Middleton-Stewart was appointed by the RIBA.[7]Following Mr Middleton-Stewart's award of 8 March 2010 Mr and Mrs Price issued this claim on 26 April 2010, outside the 28 day time limit provided for by section 70 of the Act. However, Mr and Mrs Price contend that the claim is not out of time because there was an outstanding process of review of the award, the result of which was not notified to Mr and Mrs Price until 29 March 2010 (at the earliest). If that is right, then Mr and Mrs Price have started this claim within time.

The grounds of appeal

[8]For reasons which will become clear later in this judgment, I propose to start by considering the merits of the various grounds of appeal. These can be summarised as follows:(1) Under section 67 of the Act, it is contended that the arbitrator had no jurisdiction to enter into the reference because the primary mode of dispute resolution required by the contract was adjudication, not arbitration. Alternatively, it is contended that the Notice of Arbitration was defective.(2) Under section 68 of the Act, it is contended that there were serious irregularities in the conduct of the reference that caused serious injustice to Mr and Mrs Price. In summary, it is complained that the arbitrator delegated some of his duties to an assessor and then refused to allow the parties any opportunity to challenge or question the substance of the assessor's evidence; the arbitrator refused to consider certain claims that were introduced by Mr and Mrs Price towards the end of the arbitration; the arbitrator had no satisfactory reason for resolving the issue about the date of Practical Completion; and the arbitrator failed to consider whether or not Mr and Mrs Price were entitled to liquidated or other damages. This is not an exhaustive summary of the grounds put forward in the Claim Form, but covers the main points raised during the hearing of the appeal.(3) Under section 69 of the Act, it is contended that the arbitrator's conclusion that the notice of termination issued by the architect in August 2009 was wrong in law.[9]Neither of the points made under sections 67 and 69 have any merit whatever and so I can dispose of them briefly at the outset.

Lack of jurisdiction - the appeal under section 67

[10]Articles 6 and 7 of the Contract are as follows: “Article 6: Adjudication If any dispute or difference arises under this Contract either Party may refer it to adjudication in accordance with clause 7.2. Article 7: Arbitration Where Article 7 applies, then, subject to Article 6 and the exceptions set out below, any dispute or difference between the Parties of any kind whatsoever arising out of or in connection with this Contract ... shall be referred to arbitration in accordance with Schedule 1 and the JCT 2005 edition of the Construction Industry model Arbitration Rules (CIMAR). The exceptions to this Article 7 are ... [these are not relevant]."

Article 7: Arbitration

[11]Clauses 7.2 and 7.3 of the Contract are as follows: “Adjudication 7.2 If a dispute or difference arises under this Contract which either Party wishes to refer to adjudication , the Scheme shall apply except that for the purposes of the Scheme the Adjudicator shall be the person (if any) and the nominating body shall be that stated in the Contract Particulars. Arbitration 7.3 For the purposes of Article 7, if it applies, the procedures for arbitration are set out in Schedule 1. " The Contract Particulars state that “Article 7 and Schedule 1 (Arbitration) apply”.[12]It was submitted by Mr Ben Beaumont, who appeared for Mr and Mrs Price, that the effect of Articles 6 and 7, taken together, was that the adjudication provision prevailed so that adjudication became the primary mode of dispute resolution so that, as I understood the argument, unless both parties agreed otherwise a dispute had to be referred to adjudication in preference to arbitration. Mr Beaumont submitted at paragraph 25 of his skeleton argument that "Adjudication is the first step for dispute resolution for payment issues under this form of contract and if negotiated settlement was not forthcoming it was right that adjudication be followed". I am not sure that this submission, taken by itself, goes far enough, but I will take the submission to be as I have already summarised it.[13]The basis for the submission is the presence of the words "subject to Article 6" in Article 7. This means, submits Mr Beaumont, that Article 6 is intended to have priority over Article 7. I disagree. If the words "subject to Article 6" were not included in Article 7, then arbitration would become the mandatory method of dispute resolution. This is because, if one removes those words, Article 7 would effectively read:
"any dispute or difference between the Parties ... shall be referred to arbitration ..."
. In other words, the reference of any dispute to arbitration would be mandatory.[14]In my judgment, the purpose of including the words "subject to Article 6" was to give the parties the alternative of referring a dispute to adjudication if that is what they wished to do. Apart from anything else, the contract would have to include such a provision if it was to be compliant with section 108 of the Housing Grants, Construction and Regeneration Act 1996 ("HGCRA"). The two articles taken together give the parties or, more correctly, the party who wishes to have a dispute resolved, the choice of either adjudication or arbitration. Or, indeed, if one party referred a dispute to arbitration, the other party could at the same time refer the same dispute to adjudication with the result that there would be parallel proceedings by way of both arbitration and adjudication in respect of the same dispute (this is because section 108 of HGCRA confers a right to adjudication “at any time”: see Herschel Engineering v Breen Property (2000) Con LR 1, Dyson J).[15]There are, of course, forms of contract which provide that the reference of a dispute to adjudication is a necessary prerequisite of the right to refer that dispute to arbitration, but these usually do so in clear terms. There is no such clarity of language here. In my judgment, the effect of Articles 6 and 7 is that a party who wishes to refer a dispute for resolution has the choice of either adjudication or arbitration. If he chooses arbitration, the other party has no option but to accept that choice. Although it seems that there was some change of position in Carter's camp, in that it appeared at one point that Carter was prepared to accept adjudication as the mode of dispute resolution provided that the adjudicator was not the architect, in the end Carter chose to issue a Notice of Arbitration and that was that. It is of interest, although in no way decisive, that when Carter's solicitors first indicated that they proposed to refer the dispute to arbitration, the response of Mr and Mrs Price (in a letter dated 15 December 2008) was simply to acknowledge receipt of the letter and the enclosed lever arch file, with some complaints about the manner of its delivery, but to say nothing about the fact that arbitration was not the appropriate method of dispute resolution.[16]In a subsequent letter dated 23 January 2009, Mr and Mrs Price said that they did not agree to arbitration and felt that they were being "compelled toward proceedings in an unreasonable manner". Whilst this certainly went further than their earlier letter of 15 December 2008, again it did not say that arbitration was not the permitted mode of dispute resolution.[17]For the reasons that I have given, I consider that there is nothing in the point that the arbitrator lacked jurisdiction to enter into the reference, and accordingly I regard this ground of appeal as hopeless.[18]However, a further point was taken by Mr Beaumont in relation to the Notice of Arbitration itself. At paragraph 38 of his skeleton argument he submitted that the Notice did not comply with rule 2.1 of the CIMA Rules because it did not require Mr and Mrs Price to agree to the appointment of an arbitrator. The relevant parts of the Notice were as follows: ". . . This notice is also required to make any proposals our client may have in respect of the arbitrator. Our client proposes one of the following as arbitrator. Both have indicated their willingness and ability to act as arbitrator in this dispute: . . . We invite you to make such proposals as you may yourselves have for the name of the arbitrator. We will consider them with our client. If the parties cannot agree on the name of the arbitrator by 7 January 2008, being 14 days from the date of this letter, it will be open to either party to apply to the nominating body named in the Contract for the appointment of an arbitrator. That body is the Royal Institute of British Architects.”[19]The relevant CIMA rules are as follows: "2.1 Arbitral proceedings are begun in respect of a dispute when one party serves on the other a written notice of arbitration identifying the dispute and requiring him to agree to the appointment of an arbitrator: but see Rule 3.6 and Section 13 (Application of Limitation Acts). 2.2 The party serving notice of arbitration should name any persons he proposes as arbitrator with the notice or separately. The other party should respond and may propose other names. 2.3 If the parties fail to agree on the name of an arbitrator within 14 days (or any agreed extension) after:(i) the notice of arbitration is served, or(ii) a previously appointed arbitrator ceases to hold office for any reason, either party may apply for the appointment of an arbitrator to the person so empowered.” It can be seen at once that the person who drafted the Notice of Arbitration served by Carter had these rules well in mind. In my judgment the provision in rule 2.1 for the Notice to require the other party “to agree to the appointment of an arbitrator" is simply a shorthand for the process described in rule 2.2. What the party serving the Notice has to do is to name any persons he proposes as arbitrator (either in the Notice or separately). In the Notice he may also, although the rule does not require this, invite the other party to respond and, if he wishes, to propose any other names.[20]Mr Beaumont's submission is that in the case of this Notice "the key element of requiring [Mr and Mrs Price] to agree to the appointment of the arbitrator is absent”. I disagree. I consider that the Notice did invite Mr and Mrs Price to agree to the appointment of one or other of the two arbitrators named in the Notice. That is what the rules required and in my judgment this Notice achieved it.[21]Accordingly the appeal on the grounds of lack of jurisdiction fails.

Error of law - the appeal under section 69

[22]This ground of appeal was in fact abandoned, very realistically if I may say so, by Mr Beaumont during the course of the hearing. Very shortly, the reason for this concession is that the relevant provision for termination provides that, if the contractor is in breach of certain obligations under the contract, the employer may give notice of that fact and require the breach to be remedied. If the breach persists thereafter for 7 days, the employer may then terminate the contract. In this case the two letters relied on as validly terminating the contract were written by the architect on 31 July and 6 August 2009, respectively, and so, even if the breach complained of existed, it had not persisted for 7 days before the second letter (of termination) was written. By definition, therefore, two letters written 6 days apart could never give rise to a valid exercise of the right to terminate under the relevant provision.[23]Accordingly, the arbitrator's conclusion on this issue was plainly correct and so this ground of appeal fails. Had it been necessary to do so, I would have held that in fact Mr and Mrs Price did not require the leave of the court to bring an appeal under section 69 because the parties had specifically agreed (by paragraph 5 of Schedule 1 to the Contract) that either of them would have the right to appeal to the courts on any question of law arising out of an award under section 69(2)(a) of the Act.

Serious irregularity - the appeal under section 68

[24]For the purposes of this part of the judgment I will take the grounds of appeal under section 68 as they are described and set out in Mr Beaumont's principal skeleton argument, although not necessarily in the same order.

Failure to admit additional claims

[25]As I have already noted, by a letter dated 17 February 2009 Mr Middleton-Stewart was appointed arbitrator by the RIBA. In due course he gave directions for the conduct of the arbitration requiring Carter to provide an outline statement of case by 30 April 2009 and from Mr and Mrs Price to provide an outline response by mid May 2009. Following this exchange of pleadings it was directed that the arbitrator would answer three preliminary questions, which he did (at least as to the two of them) in an award dated 11 December 2009.[26]Following a site visit, which took place on 25 January 2010, Mr and Mrs Price wrote to the arbitrator asking him to add further items to the Counterclaim. These were as follows:• Hairline cracking to the external render• Further investigation of internal cracking• Plumbing alterations (repeating an item already scheduled)• External works matters, principally related to settlement• Cracks and water penetration into shed and garage.[27]It was accepted by Mr Beaumont that none of these items was included in the original Counterclaim. It seems to me that in these circumstances the arbitrator may not have had jurisdiction to deal with these items without Carter's consent. However, if I am wrong about that I consider that the arbitrator had a discretion whether or not to admit these items into the reference at such a late stage, just as a judge would have had in a claim proceeding in the High Court. I did not understand Mr Beaumont to challenge this.[28]At paragraph 1.13 of his Award, the arbitrator said this:
"I indicated to the parties my preliminary views on the matters raised, that I was reluctant to allow further delay and costs in the referral and that I only saw commercial benefit in bringing additional matters into the referral if the parties mutually consented that my award would thereby be conclusive of all matters in dispute arising out of the contract. Such agreement was not forthcoming and I have noted Carter's view that I do not have jurisdiction to deal with these additional matters exceeding the original statement of counterclaim. I therefore confirm that the additional matters identified above do not form part of this referral and consideration has not been given in formulating this award."
[29]What I understand the arbitrator to be saying in this passage is that he did not feel it appropriate to admit these items without the consent of both parties because in the absence of such agreement the items did not form part of the Counterclaim and were therefore not within the scope of the reference to arbitration. This seems to me to be reasonably clear and I do not consider that there is anything in the point that the arbitrator failed to give any or any sufficient reasons for his decision refusing to admit the additional items. I therefore reject this ground of appeal. The direction by the arbitrator to delegate assessments to an assessor without reason and thereafter to withdraw that delegation as he deemed fit (also without reason)[30]On 7 December 2009 the arbitrator notified the parties that he intended to appoint a Quantity Survey as an assessor to address conflicting evidence on valuation and to assess the value of each item in the claim and counterclaim. It seems to me that this decision fell within the power given to him by section 37 of the Act to appoint an assessor to assist the arbitrator on technical matters. However, section 37 (1)(b) provides that, unless otherwise agreed by the parties, not only can the arbitrator appoint an assessor but also, where he does so, "the parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by any such person".[31]Rule 4.2 of the CIMA Rules provides as follows:
"The arbitrator has the powers set out in Section 37 (Power to appoint experts, legal advisors or assessors). This includes power to: (i) … (ii) appoint assessors to assist him on technical matters. "
It is to be noted that this rule gives no entitlement to the parties to have a reasonable opportunity to comment on any opinion or advice offered by such an assessor, and so it might be suggested that the parties have“otherwise agreed” not to confer this right. However, it seems to me that the overriding duty on an arbitrator to act fairly as between the parties imposed by section 33 of the Act probably requires an arbitrator appointed under the CIMA Rules to give the parties some opportunity to comment on the views given by an assessor.[32]It is said on behalf of Mr and Mrs Price that the arbitrator was quite capable of making the valuations and carrying out the relevant computations himself but chose not to do so. This may be correct, but I do not see that it precludes an arbitrator from appointing an assessor to assist him if he so wishes. The discretion conferred by rule 4.2 is unfettered. But assuming that it is a discretion that had to be exercised reasonably, the arbitrator’s comments suggest that he considered that it would be more cost effective for individual items of valuation to be dealt with in this way: an approach that would be justified by the duty to avoid unnecessary expense imposed on arbitrators by section 33 of the Act. However, it is further submitted on behalf of Mr and Mrs Price that the arbitrator was "partially and on occasions crucially delegating his decision making authority".[33]At paragraph 1.11 of his Award the arbitrator said:
"I have not invited submissions on the build-up of Mr Pitteway’s assessments as they are his views derived from an overview of the material available to be taken as fair and reasonable allowances. I am satisfied that, although the assessments might provoke discussion of the exact amounts attributed to individual items, on balance and taken as a whole he has properly discharged my instruction to assess fair and reasonable amounts to be awarded "
[34]In my judgment this passage suggests that the arbitrator was not simply taking Mr Pitteway’s assessments at face value without giving them any consideration, but rather that he had considered the assessments and regarded the figures put forward as being of the right order overall even if there might be room for disagreement as to his valuation of individual items. The arbitrator was effectively adopting Mr Pitteway’s figures as his own, but not without having considered them, and I consider that he was fully entitled to do this.

The direction by the arbitrator to refuse comment on assessments offered by assessor

[35]What is relied upon here by Mr and Mrs Price is that when the arbitrator notified the parties that he proposed to appoint an assessor (in his e-mail dated 7 December 2009) he said that "I would of course publish his evidence to me for review by the parties before incorporation in my award". He then asked the parties to advise him if there was any objection to him engaging Mr Pitteway. I understand that no objection was raised by either party.[36]By an e-mail to the parties dated 19 February 2010 the arbitrator attached Mr Pitteway’sevidence to him as his QS assessor. He said that he did not wish to receive submissions on the composition of the assessments, but that he would consider comments on any related procedural matters if there was any concern that Mr Pitteway may have misdirected himself. The information attached was in the form of a standard take-off of quantities with rates attached, so as to produce an assessed sum against each item.[37]Following the course that he had adopted in relation to his first award, the arbitrator prepared a "Skeleton Draft Final Award" which he circulated to the parties in February 2010. At paragraph 1.8 of this document the arbitrator said:
"I will record that Mr Pitteway’s evidence to me has been presented to the parties before issue of my final award to give the parties an opportunity to comment should they suspect any procedural errors in Mr Pitteway’s process. I will not accept any submissions debating the substance of Mr Pitteway’s evidence."
[38]Only 22 February 2010 the arbitrator sent an e-mail to the parties in which he acknowledged receipt of Carter's comments on his draft award and said that he was willing to accept comments from Mr and Mrs Price if limited to two sides of A4.[39]Mr and Mrs Price, who had by then decided to dispense with the services of their adviser, Mr Wood, submitted their response to the draft award in the form of a letter dated 2 March 2010. It was a seven page letter - very much more than the arbitrator had indicated. To some extent this consisted of a reiteration of points made in relation to the preliminary questions that the arbitrator had already rejected in his first award. Pages 3-6 inclusive dealt with the individual items in Mr Pitteway’s assessments on what was almost an item by item basis, although in almost every case the comments made by Mr and Mrs Price related to issues of liability or principle rather than quantities or rates. There was no protest in the letter against the arbitrator's direction that the assessor's build-ups should not be the subject of comment. In spite of the fact that Mr Price’s letter was three times as long as the arbitrator's limit, he appears to have taken all their comments into account.[40]It seemed to me that this was the strongest point advanced on behalf of Mr and Mrs Price during the hearing, but on reflection I am not satisfied that the course taken by the arbitrator amounted to a breach of section 33 of the Act. Both parties were treated in the same way and given the same (limited) opportunity to comment on the assessor's conclusions. Alternatively, if it did amount to a breach of section 33, I consider that it amounted to no more than an irregularity: I do not consider that it could properly be described as a serious irregularity. It was the same for both parties. Further, the Act requires not only that there is a serious irregularity but also that the irregularity has caused or will cause substantial injustice to the applicant.[41]No evidence has been put forward on behalf of Mr and Mrs Price to show what they would have done if they had been permitted to comment on the assessor's build-ups. Accordingly, as pointed out by Miss Serena Cheng, who appeared for Carter, there is no means of knowing whether or not any errors that Mr and Mrs Price might have alleged to exist in the assessor's figures, when taken together, would have been significant. It is therefore impossible to say whether or not any irregularity that there might have been caused substantial injustice to Mr and Mrs Price.[42]For these reasons, therefore, this ground of appeal fails also. Failure to give reasons in the preliminary questions commentary and award giving evidence to himself not made available to the parties[43]I have to confess at having had some difficulty in understanding this ground but, so far as I can tell, it is not intended to apply to the arbitrator's answers to the first two preliminary questions which were given in his first award. There was no appeal against the first award and so, in so far as the arbitrator repeated and adopted his findings in that award in his second award, there can be no appeal.[44]In his Commentary on the Submissions in respect of the Preliminary Questions dated 15 September 2009 the arbitrator said that the evidence that had been presented in relation to the third question did not enable him to decide the point. The third preliminary question was: were the works practically complete per JCT clause 2.9 on or around 23 July 2008?[45]However, in his second award, at paragraph 3.4.1, he said this:
"On review of the snagging lists I decide that the matters outstanding when Carter [sic] took possession of the works were not de minimis and that practical completion was not achieved at that stage. I consider that the CA acted properly by withholding certificate of Practical Completion until the remedial works were substantially complete and noting that the Architect’s and Local Authority’s certificates were issued within a two week period I will endorse the Architect’s identification of the 18th February 2009 as the date of Practical Completion."
The reference in the above passage to Carter taking possession of the works was clearly meant to be a reference to Mr and Mrs Price.[46]What is said in Mr Beaumont's skeleton argument (at paragraph 64) is that as far as can be ascertained no additional evidence was given to the arbitrator between the date of the draft of the first award (15 September 2009) and the second award to enable the earlier lack of information to be supplied. It continues: "Thus it appears that the arbitrator may have given evidence to himself which would be a clear breach of section 33".[47]Miss Cheng had a short and robust answer to this point, namely that there was further evidence. She drew my attention to a witness statement from Mr Price dated 12 November 2009, in which he dealt with the existence and extent of the defects when Mr and Mrs Price moved back into the property on 24 July 2008 and asserted that Practical Completion did not take place until 18 February 2009. In addition, there was also a long witness statement dated 20 November 2009 by Mr Ian Carter, who also devoted a couple of pages to the question of the achievement of practical completion[48]I therefore have no hesitation in rejecting this ground of appeal.

Lack of reasons for failing to award liquidated damages

[49]This ground was very sensibly abandoned by Mr and Mrs Price during the course of the hearing.

Refusal to permit the parties to make submissions as to admissibility of evidence

[50]This appears to be the same point as that raised under the heading of the failure to admit additional claims, with which I have already dealt above. I need therefore say no more about it.

The application to extend time for appeal

[51]Since I consider that there is no merit in any of the grounds of appeal relied on by Mr and Mrs Price, whether or not I give leave to extend time (if required) under section 70 of the Act is now academic. However, out of deference to the detailed submissions that were made I will state my views briefly.[52]As I have said, the arbitrator issued his award on 8 March 2010. Paragraph 5.3 in the concluding section of the award provided as follows:
"Within 28 days of this award being taken up the Respondent shall pay the Claimant the balance of the sums awarded in respect of the claim and counterclaim . . ."
[53]By a letter dated 24 March 2010 Mr and Mrs Price wrote to the arbitrator making what they described as a "well intentioned request that you reconsider your award on the following matters under the relevant sections of the Act”. The matters raised were said to arise under sections 67, 68 and 69 of the Act. There was no reference to section 57, which concerns the correction of an award. On 29 March 2010 Carter’s solicitors served its submissions on costs and interest (which ran to 95 paragraphs) as directed by the arbitrator.[54]By an e-mail to the arbitrator dated 6 April 2010 Mr Price wrote:
"The attachments concern counterclaim summary, costs and interest for the respondent. As the 9th April (Friday) approaches, being the end of the 28 day period mentioned in your award we wish to apply for an extension. Further to our attachments and letter with the email of 26th March 2010. We request and apply for a 21 working day extension to reply to the claimant's recent letters on costs and interest as qualified advice is needed, in this regard I trust our heads of counterclaim document is sufficiently clear. The extension will be used to also perfect a team to appeal the award. We are aware of the difficulties in appealing 1996 version of the Act which it seems was deliberately made difficult to attract foreign disputes and the correspondingly low rate of appeal success."
I was told that the reason for the end of the 28 day period being given as 9 April 2010 (and not 5 April) was because that was 28 days after the award was taken up by Mr and Mrs Price, rather than the date on which the award was made. The arbitrator replied by e-mail on the same day inviting Mr and Mrs Price to respond to Carter's submission on costs within the next 14 days. He then said:
"Should the parties agree that costs should be held open pending a possible appeal I am willing to hold-fire on this task, otherwise I note that I am obliged to make my award within 56 days of the date of the award on the issues"
. Finally,referring to the letters from Mr and Mrs Price, he said that as previously advised through his PA, his powers were limited to "correction of clerical errors, ambiguities and the like" and that he had no jurisdiction to reconsider the fundamental matters that Mr Price had raised. The reference to the previous advice from his PA was to a letter that had been written to Mr and Mrs Price on 29 March 2010 to the same effect.[55]On 14 April 2010 Mr Price replied by e-mail to the arbitrator's e-mail of 6 April 2010 saying that they were ready to “apply for the appeal during next week". The e-mail then continued as follows:
"Your email mentions a 14 day extension in answer to our request for 21 working day's extension from 9th April 2010. Please confirm that this applies to filing the appeal."
[56]On the same day, one hour later, the arbitrator replied saying that the 14 day period mentioned in paragraph 3 of his e-mail of 6 April was the period directed for Mr Price to respond to Mr Carter's submission regarding costs and "has no other implications". To this Mr Price replied almost immediately in the following terms:
"I note what you say with surprise and concern. Your e-mail of the 6th April third paragraph is quite explicit that extension has been granted. I am taking advantage of that extension in order to file the appeal. If it now appears that I am forced to seek leave to appeal out of time because you have reneged on a grant of extension then I will have no choice but to join you in the proceedings and invite the discretion of the court to award indemnity costs against you should I be successful."
[57]I noted that Mr Beaumont did not draw my attention specifically to this e-mail when he was taking me through this exchange of messages. I am not surprised. It was, in my view, a disgraceful e-mail to send to an arbitrator. On no fair reading of the e-mails from the arbitrator to which I have referred could any reasonable person have thought that the arbitrator had granted or was purporting to grant an extension of time for lodging an appeal against his award. The arbitrator's reply, which was conspicuous by the moderation of its terms, stated that the question of reneging did not arise because he had never purported to have any powers to grant an extension of any period in relation to his award in respect of the issues.[58]Of course, by the time that this exchange of e-mails was taking place on 6 April 2010, the 28 day period provided by section 70 of the Act had expired - on the previous day.[59]Mr Beaumont submitted very strenuously that it was incumbent on the arbitrator on 6 April 2010 to tell the parties that the time for appeal had passed. In his skeleton argument in support of the application for the extension of time he submitted (at paragraph 27) that "in view of the clear request for an extension of time within which to appeal and the failure of either the arbitrator or those representing [Carter] to draw attention to a key date for the expiry of the time limits the claimant was excused by the confusion of others and was acting reasonably in the circumstances".[60]I reject this submission emphatically. The first time that Mr Price mentioned an extension of time for filing an appeal was in his e-mail of 14 April 2010. In his first e-mail of 6 April 2010 Mr Price clearly applied for a 21 working day extension of time within which to reply to Carter's submissions on costs and interest because he said that "qualified advice" was needed. He then said that that the extension would be used also to perfect a team to appeal the award. But, as I have said, by this time the 28 day period within which to appeal had already expired.[61]But leaving this point on one side, I can see absolutely no basis for the proposition that an arbitrator, having issued his award, is under an obligation to advise the losing party that he has only 28 days within which to appeal. There are two reasons for this. First, that once an arbitrator has given his award, subject only to the correction of errors, or the power to make an additional award in respect of a claim presented to him but not dealt with in the award, under section 57 of the Act, the arbitrator has no jurisdiction to revisit the matters decided or to take any other steps in relation to that part of the reference. He is, to use the Latin phrase,“functus officio”. Second, as pointed out by Miss Cheng, for an arbitrator to give advice to one party to the potential detriment of the other would be a breach of the arbitrator's duty under section 33 to act fairly.[62]Contrary to the forceful submissions made by Mr Beaumont, I do not consider that Mr and Mrs Price acted reasonably. Even though by this time Mr and Mrs Price had dispensed with the services of their legal adviser, it is quite clear from the correspondence that Mr Price was familiar with the provisions of the Act and that he was aware in general terms that there was a time limit. For someone who was familiar with the arbitral process it would have been easy enough to check. Further, since Mr and Mrs Price insistently made clear that they disagreed with the arbitrator's answers to the preliminary questions, I would be surprised if the question of appealing the first award had not arisen and been discussed with Mr Wood, their legal adviser at the time (to whom the arbitrator's e-mail of 11 December 2009, notifying the parties that the award on the preliminary questions was ready to be taken up, was copied).[63]However, for the reasons which follow, I do not need to decide the question of whether or not Mr and Mrs Price should be granted an extension of time in the light of this finding and the well-known principles set out by Colman J in Aoot Kalmneft v Glencore [2002] 1 Lloyd's Rep 128 because in my judgment it would be right to grant the necessary extension of time on another ground. To that I now turn.[64]I have already said that the question of whether or not Mr and Mrs Price needed an extension of time at all was in issue and I have referred to the letter from Mr and Mrs Price dated 24 March 2010 in which they asked the arbitrator to reconsider various aspects of his award. Although this letter referred only to sections 67, 68 and 69 of the Act, it is just arguable that some of the matters raised in that letter could have fallen within the scope of section 57. For example, the first bullet point made under section 68 was "Ambiguity in completion date in despite of completion certificates" and the second bullet point was "liquidated or any damages not awarded".[65]In my judgment this letter could be regarded as a misconceived attempt to make an application for correction of the award, or for an additional award in relation to matters not dealt with, under section 57 of the Act. But to the extent that it was a valid application, it was disposed of by a letter to Mr and Mrs Price from the arbitrator dated 29 March 2010 in which he told them that his powers were limited to the correction of clerical errors and that he was therefore not at liberty to reconsider the matters decided in his award.[66]Section 70 of the Act provides that an application or appeal may not be brought under sections 67, 68 or 69 of the Act unless the applicant or appellant has first exhausted any available recourse under section 57. Some of the provisions of the Act in this section are, in contrast to the remainder of the Act, not easy to follow. Subsections (2) and (3) provide as follows:
"(2) An application or appeal may not be brought if the applicant or appellant has not first exhausted - (a) any available arbitral process of appeal or review, and (b) any available recourse under section 57 (correction of award or additional award). (3) Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process."
[67]The first difficulty with these provisions is whether the extended running of time for appeal mentioned in subsection (3) applies only to any process invoked under subsection (2)(a) or applies to an application under section 57 as well. Taking the provisions as they stand, the fact that subsection (3) uses the words "any arbitral process of appeal or review" which are found only in subsection (2)(a) suggests that an application under section 57 does not have the effect of extending the 28 day time limit, although the way in which the provisions are drafted – with section 70(3) appearing to qualify the whole of section 70(2) – might suggest otherwise. In Surefire Systems Ltd v Guardian ECL Ltd [2005] EWHC 1860, Jackson J briefly considered this point. He said, at paragraph 27, that in his view clarification of an award given by an arbitrator following correspondence from the parties constituted "an arbitral process of ... review" for the purposes of section 70(3) of the Act.[68]The expression “available arbitral process" is defined in section 82(1) as including any process of appeal to or review by an arbitral or other institution or person vested by the parties with powers in relation to that matter. It is plainly a different process to that of correction of an award by the arbitrator himself.[69]It is perhaps relevant also that section 57(6) provides that any additional award is to be made within 56 days of the date of the original award (or such longer period as the parties may agree), so that it constitutes a further award in its own right, whereas section 57(7) provides that any correction of an award shall form part of the award. Thus the making of a correction does not alter the date on which the award is treated as having been made. This might suggest that the 28 day time limit runs from the date when the award is made, irrespective of any application for correction under section 57.[70]I have to say that, whilst the conclusion of Jackson J makes very good sense from a practical point of view, I have reservations as to whether it is correct. It is not clear from the report of the decision in that case whether or not the question was the subject of any detailed argument. It seems to me that the very precisely drafted wording in section 70(3) means that only an arbitral process of appeal or review (if there is one) has the effect of extending the time with which to appeal, so that even where there is an application for correction of an award under section 57 any application or appeal must be brought within 28 days of the award.[71]This, if correct, is obviously unsatisfactory because the outcome of an application under section 57 may affect a party's decision about the need for an appeal. For example, suppose that the arbitrator has by mistake made an obvious error, such as accidentally transposing two digits in a number, with the result that a sum of money is awarded to the wrong party. Sometimes the circumstances may be such that the error cannot be corrected, either under section 57 or at all (see, for example, Bouygues v Dahl Jensen [2000] BLR 49 (Dyson J) and 522 (CA)), with the result that the only recourse available to the aggrieved party - if there is one - is by way of appeal. Since the arbitrator has 28 days from receipt of an application to correct the award within which to make the correction, that 28 day period will always expire on a date that is more than 28 days from the award - when the time for appeal expires.[72]This has the consequence that a party who seeks correction of an error in the award which may affect the ultimate outcome must, in order to preserve his rights of appeal, start his claim within the 28 day period and before he knows the outcome of the application for correction. Of course, that party may apply to the court within 28 days of the award under CPR 62.9(2) for an extension of time until a date after the arbitrator has decided whether or not to correct the award, but that still involves expenditure in costs and no certainty of outcome.[73]Having expressed these provisional views I do not propose to reach a firm conclusion on this point because in my judgment it is not necessary for me to do so. In my view, the fact that Mr and Mrs Price had applied to the arbitrator for reconsideration of the award would make it unjust to treat the 28 day period under section 70 as having started to run before they knew the outcome of that application. As it happened, the claim form was issued just within 28 days of 29 March 2010, which is when their application for reconsideration of the award was rejected.[74]On the assumption, therefore, that Mr and Mrs Price need an extension of time to 26 April 2010 within which to bring this claim, I consider that it should be granted and accordingly I extend the time to that date. However, this does not affect the outcome of this application because, for the reasons that I have already given, I consider that the appeal has no merits and must fail.[75]Accordingly, this claim must be dismissed with costs. Since the costs of the claim are effectively the same as the costs of this application, I am prepared to assess summarily the amount of Carter's costs on the basis of short written submissions from each side. To that end, I direct that Mr and Mrs Price are to serve any submissions on the amount of the costs claimed by Carter within 14 days of the handing down of this judgment in draft, Carter is to serve brief submissions in response within 7 days thereafter and I will then decide the matter on paper without further argument.

Cited in 3 later judgments