The High Court has referred a construction contractor’s payment dispute with Kildare and Wicklow Education and Training Board to arbitration, leaving the merits of the payment claim for the arbitrator.
K&J Townmore Construction Limited claims that €206,245.72, excluding VAT, remains due for work at St David’s National School in Naas. The Board disputes its liability. The judgment records the contractor’s claim that the parties agreed a final account of €1,891,125, excluding VAT, at a meeting in September 2016, with deductions for earlier payments and retention. The Board disputes the alleged agreement and raised issues including defects, set-off, authority and compliance with the contract’s payment procedures.
The contractor brought summary proceedings seeking judgment on the basis of an account stated and settled. The Board then applied under Article 8(1) of the UNCITRAL Model Law for the parties to be referred to arbitration under clause 13.2 of their Public Works Contract. Alternatively, it sought a stay to allow conciliation under clause 13.1.
The contractor argued that its claim arose from a separate account agreement, rather than under the construction contract, and that the Board was estopped from relying on the arbitration clause. It also argued that the alleged account agreement had made the clause inoperative.
Justice David Barniville held that the dispute arose under the contract. The alleged final account had been negotiated in the context of the contract and the work carried out under it, so disputes about whether that account existed and what it meant fell within the arbitration clause. He rejected the estoppel and inoperability arguments.
The judge did not decide whether the Board’s defences were well founded or whether the contractor was entitled to payment. He said the arbitrator could determine disputes about the existence and enforceability of the alleged account agreement. The court ordered the parties to arbitration under clause 13.2. Because of that decision, it was unnecessary to consider the Board’s alternative request for a stay to allow conciliation.