K & J Townmore Construction ltd. v Kildare and Wicklow Education and Training Board  IEHC 666 (11 October 2019)
- Posted by DoylesAr
- On November 26, 2019
- 0 Comments
in existence and binds the parties. The plaintiff resists the application.
respect of a different agreement.
Building Works Designed by the Employer” (the “PWC form”).
The plaintiff opposes that application.
subject of these proceedings as well as other disputes between the parties which are not.
determination procedure and these proceedings, which should be enforced by the Court.
under Clause 13.2.
circumstances, I must refuse the defendant’s application.
real dispute between the parties on the relevant facts.
revised terms of engagement were set out in the agreement for expert determination.
Revised Terms of Engagement
new provisions in relation to the jurisdiction and powers of the expert at para. D.
expeditious economical and final determination of the dispute referred to [the expert]”.
fact or in Law, as the [expert] may require….”
administer the Agreement.”
on the 28th October, 2015” (i.e. the contract).
Defendant’s dissatisfaction with expert
determinations from the date of the letter.
letter dated 2nd October, 2017.
Determinations in relation to payment
issue invoices to the defendant for payment of those sums.
seek to have those issues referred to arbitration.
on 16th August, 2018, which was signed by both parties (the “conciliation agreement”).
I should, therefore, refer to the relevant provisions of the conciliation agreement.
agreement on a final account figure” (para. 1).
Conciliation save to the extent provided in this agreement.”
agreement was reached on all matters in dispute (para. 4).
money payable under 13.1.11 (1).”
Commencement of proceedings and application for entry into the Commercial List
the proceedings in the commercial list and sought summary judgment in that amount.
determination process had been conducted in an unsatisfactory manner.
to arbitration in respect of the issues the subject of the proceedings.
Application for order under Article 8(1) of the Model Law
arbitration in respect of the disputes the subject of the proceedings.
unsuccessful and did not lead to a resolution of the issues between the parties.
contained in Clause 13.2.
to decide on this application is which of those respective contentions is correct.
seek to rely on the arbitration provisions contained in Clause 13.2
Article 8(1) of Model Law
arbitration does not apply.
under Article 8(1).
purposes of Article 8(1) of the Model Law.
Law makes little practical difference in the context of the present application.
Interpretation of expert determination agreement
parts of those provisions.
Clauses 13.1 and 13.2 of the contract
determination with respect to the disputes encompassed by that procedure.
before the party is permitted to refer the matter to arbitration.
when the dispute is “finally resolved” if it is found that an overpayment has been made.
matters referred to the expert for determination.
the Schedule, part 1N.”
Key question and legal principles
10 and 17–41, pp. 716 and 729).
interpretation of the agreement for expert determination.
which is stated to be “final and binding”.
have recourse to the arbitration provisions in Clause 13.2.
proper interpretation of Clauses 13.1 and 13.2 supports such a contention.
agreement precludes it from seeking to refer the disputes to arbitration.
Clauses 13.1 and 13.2 of the contract.
intent which is inadmissible as an aid to interpretation of a contract.
expert determination in place of the references to Clause 13.1 in Clause 13.2.
or to continue its proceedings but does not entitle the defendant to do so.
Substance and defendant’s complaint about the expert determination process
states that it regarded that process as being “unsatisfactory”.
to make.” (BAM, para. 24, p. 12).
respects unclear. But this is not the occasion on which to explore them.” (p. 913)
and I consider it in that context below.
apply equally to the interpretation of a non-insurance contract.
13.1 and 13.2 of the contract.
if any, application in the present case.
Terms of Expert Determination Agreement
“documents … in the contemplation of the [contract]”.
on Clauses 13.1 and 13.2 of the contract.
with respect to the disputes referred by the parties for expert determination.
Final and Binding
and final determination of the dispute referred to [the expert].” (emphasis added).
be both “final” and “binding”.
in light of the court’s obligation to construe the agreement as a whole.
determinations to have a “final” and “binding” consequence for the parties.
44, p. 16) (emphasis added).
issued by the expert to be both “final” and “binding”.
grounds set out in the 1954 Act.
not state that the award was to be “final and binding” and yet it had that effect.
(subject to the limited grounds on which recognition or enforcement may be refused).
Act in Ireland).
challenge on very limited grounds (as we shall see shortly).
analogous to the status of an adjudicator’s decision under the 2013 Act.
Status in Law of Expert Determinations
(para. 18–14, p. 136)
184; para. 10.2)
which may limit the extent of that freedom.…” (para. 53, p. 185; para. 10.3).
quoted by Hogan J. in Dunnes Stores at para. 3, p. 2).
review.” (at para. 85).
not as arbitrators.
“final and binding”.
final and binding.
Defendant’s reliance on Clause 13.1.10
of an expert’s determination as discussed in the cases referred to earlier.
Plaintiff’s Letter of 11th September, 2017
displace only the conciliation provisions of the contract and not the arbitration provisions.
rather than one selective part of it.
defendant contends, renders the letter admissible in evidence.
Hoffman’s principles in ICS.
agreement as opposed to an amendment or variation of the agreement.
Agreement itself [contended]”.
had regard to the letter.
expert determination on the dispute resolution provisions of the contract.
Whether Clause 13.2 can survive disapplication of Clause 13.1
rider which in turn incorporates by reference the agreement for expert determination.
ought to have sought rectification of Clause 13.2.
subject to sub-clause 13.1 be finally settled by arbitration…”
then Clause 13.2 does not apply in respect of those disputes.
in Clause 13.2. They did not do that either.
referred for expert determination in lieu of conciliation under Clause 13.1.
Conclusions on interpretation of Expert Determination Agreement
are nonetheless the subject of the arbitration agreement contained in Clause 13.2.
disputes the subject of the agreement for expert determination.
were not the subject of the agreement for expert determination.
the interpretation and application of the agreement for expert determination.
of the contract.
litigated or dealt with by arbitration.
in brief terms my conclusions on this issue.
referring those disputes to arbitration.
were the subject of the expert determination procedure to arbitration.
Summary of conclusions
disapplied with respect to the disputes which are now the subject of these proceedings.
order to be made and on any other consequential issues.Result: The defendants application was refused