The High Court rejected most of a construction company’s challenge to an interim arbitration award over work on Dublin’s James Joyce Bridge, but remitted the award’s costs and interest provisions to the arbitrator for correction.
In a judgment delivered on 20 February 2009, Mr Justice William McKechnie refused to set aside the award or remove arbitrator John Higgins. The court found that the contractor had a fair opportunity to make its case and that the arbitrator had considered, and rejected, its central argument about payment for revised steelwork instructions. It also found no basis to overturn the award over the other alleged procedural and evidential irregularities.
Carillion Irishenco, formerly known as John Mowlem Construction Limited trading as Irishenco Construction, had contracted with Dublin City Council in 2001 to build the bridge. It sought an additional €6,454,846.46 after construction difficulties extended the works from the contracted 11 months to 26 months. The engineer rejected the claims, and the dispute went to arbitration.
Higgins’s interim award, issued on 31 July 2007, dismissed the contractor’s claim. He found that responsibility for designing and executing the structural steel joints rested with the contractor, and that the welding problems resulted from shortcomings in fabrication and quality control. He concluded that the contractor and its subcontractor, Harland & Wolff, were in breach of contract, including by stopping work without the engineer’s approval. He found no further payment was due for the steelwork.
The contractor argued that the arbitrator wrongly treated its closing submission on the contractual status of two site instructions as a late amendment, and failed to consider its argument that the instructions were payable variations. It also said he had promised to seek legal advice and share it with the parties. The judge found that the argument was open on the pleadings and that the arbitrator’s award, read as a whole, showed he had considered and rejected it. The contractor also had later opportunities to respond in writing to the objection, the court found, so there was no breach of fair procedures. As the arbitrator had not obtained legal advice, the promised process for commenting on any advice did not arise.
The judge rejected the remaining complaints, including allegations concerning undisclosed evidence, hearsay, expert bias and excess of jurisdiction. He said the arbitrator had no authority to decide costs and interest because the parties had agreed to leave those issues over. He remitted that part of the award so the arbitrator could correct the record. The court otherwise refused the reliefs sought, leaving the substantive findings and dismissal of the payment claim in place.