The High Court has dismissed an application by Cleary & Doyle Contracting Limited to stop a dispute with Winthrop Engineering and Contracting Limited being heard in arbitration. It found that the dispute fell within the arbitration clause of their subcontract, but did not decide whether the appointed arbitrator, Mr. John F.F.F. O’Brien, had been properly appointed under that clause.
The dispute concerns Winthrop’s claim for €68,856 for “direct works” and €81,865.89 for an “extension of contract”. Winthrop said the works were carried out at Cleary & Doyle’s request while it was on site completing mechanical works under a subcontract dated 10 January 2003. Cleary & Doyle argued that the claims arose under a separate agreement, outside the subcontract and its arbitration clause.
The subcontract covered mechanical works at a housing development at the rear of Ailesbury Road, Dublin. Its clause 26 referred disputes between the contractor and subcontractor arising out of or connected with the subcontract to arbitration. The court noted that the works behind the present claim were done while Winthrop was on site for the subcontracted work and found that they were connected with those obligations. It also concluded that the parties’ contractual relationship for the additional works was between the same companies, supporting the application of the arbitration clause to those works.
Cleary & Doyle had also argued that some matters had already been determined under the main contract and that written instructions were required for variations. The judge said those issues were for the arbitrator to decide if he had jurisdiction, rather than matters for the court to determine on this application.
The judgment addressed a procedural concern too. The court considered that a claim for declaratory relief of this kind should ordinarily have been brought by plenary summons rather than an originating notice of motion. The parties agreed that the court should determine the issue in the proceedings as brought, and the notice of motion was amended to include the requested declaration.
The court found the dispute was governed by clause 26 and that an arbitrator appointed in accordance with it had jurisdiction. It dismissed Cleary & Doyle’s application. The judge expressly made no finding on whether Mr. O’Brien’s appointment complied with clause 26.