The High Court has ordered Ocean Point Development Company Limited (in receivership) and Clancy Project Management Limited, trading as Clancy Construction, to arbitrate their dispute under a construction contract. The order refers only the issues Ocean Point raised against Clancy in its existing proceedings; its claims against the other four defendants remain before the court.
Mr Justice David Barniville delivered the judgment on 10 May 2019. Clancy applied under Article 8(1) of the UNCITRAL Model Law, which requires a court to refer parties to arbitration where the dispute is covered by an arbitration agreement, unless the agreement is null and void, inoperative or incapable of being performed.
Ocean Point opposed the application on two grounds. It argued that Clancy repudiated the arbitration agreement by suing in 2008 for €768,379.45 certified as due under the contract, and that Ocean Point accepted that repudiation when it started the current proceedings in 2014. It also argued that arbitration could not properly proceed between Ocean Point and Clancy alone while four other defendants faced claims in the same case.
The judge held that the contract’s arbitration clause covered disputes about matters arising under the contract, but its specific reference to certificates concerned an architect withholding a certificate. It did not extend to a dispute over non-payment of an amount already certified. Clancy’s 2008 summary proceedings therefore did not breach the arbitration agreement on that issue.
The judge added that, even if those proceedings had breached the agreement, they did not show a clear and unequivocal intention by Clancy to abandon arbitration. Clancy was seeking arbitration at the same time over other disputes, including measured work, variations and extension-of-time costs. The judge concluded that Clancy had not repudiated the agreement and Ocean Point had not accepted any repudiation.
The judge also rejected the argument that the agreement was incapable of being performed because the other defendants would not take part in the arbitration. He said the claims against those defendants, and any contribution or indemnity issues, could remain in the High Court proceedings. The court’s obligation under Article 8 was mandatory once Ocean Point failed to establish a ground for refusing referral.
The order sends the Ocean Point–Clancy dispute to arbitration under clause 38(b). Ocean Point’s claims against the other defendants and related cross-claims remain before the High Court. The judgment records that procedural issues, such as security for costs, may still arise in the arbitration.