The High Court has referred a payment dispute between XPL Engineering Limited and K & J Townmore Construction Limited to arbitration, after finding that the construction company had disputed the engineering firm’s claim under a subcontract for work at St. Etchen’s National School in Kinnegad.
Mr Justice David Barniville ruled on 11 October 2019 that the requirements of Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration were met. The judge said he would make an order referring the dispute over the €92,011.12 sought by XPL to arbitration. He did not decide whether that sum was actually owed; he said the merits of the claim were for the arbitrator.
XPL had brought summary proceedings seeking €187,194.91 under two subcontracts. It later pursued judgment for €92,011.12, which it said represented the value of work completed under the St. Etchen’s subcontract. The company relied on site meeting minutes recording percentages of work completed and its own calculation of the value of that work.
Townmore denied XPL’s entitlement to payment, said it had suffered loss and damage due to XPL’s alleged actions and inaction, and claimed it had a counterclaim. The judge found this material, together with earlier correspondence disputing the claims and alleging contractual failures, sufficient to establish a dispute. He said the site minutes did not admit the value XPL assigned to the work.
The judge rejected XPL’s argument that Townmore had missed the deadline to request arbitration. He found that Townmore’s January 2019 affidavit did not address the substance of the dispute, while its application and supporting affidavit of 26 March 2019 did so and requested arbitration at the same time. He also found no unreasonable delay in bringing the application.
XPL had accepted that its entire claim under the other subcontract, for work at Stanhope Green in Smithfield, Dublin 7, and part of its remaining St. Etchen’s claim were disputed and covered by arbitration clauses. The judge said those disputes should also be referred to arbitration, subject to hearing counsel further on the terms of the order. He encouraged mediation and said the disputes could, if possible, be dealt with in one arbitration.
The judgment did not set out the final terms of the order. The judge said he would hear counsel further on those terms and related issues.