The High Court refused an application by Alandale Logistics Limited and Pynest Limited to refer Barnmore Demolition and Civil Engineering Limited’s claim against them to arbitration and stay the court proceedings. It held that, even applying the lower prima facie test advanced by the defendants, there was no arbitration agreement between Barnmore and either company.
The dispute concerned Clause 18 of an unexecuted draft subcontract. The defendants argued that the clause bound Barnmore. Barnmore’s central objection was that it had never agreed to arbitrate with either of them.
The court found that the draft had not been finalised or accepted. At a June 2008 meeting, the parties had agreed in principle that Barnmore would enter into a contract with the Irish company, subject to confirmation and acceptance by their respective companies. Important terms remained open, and a revised draft was to be sent but never arrived. The court said this amounted to an agreement in principle to enter into a contract, not acceptance of the particular draft or its terms.
The defendants relied on a payment made in June and later emails referring to the draft subcontract. The court concluded those matters did not establish acceptance of the contract or its arbitration clause. It also found no separate agreement to arbitrate, no established course of dealings that made arbitration an understood term, and no basis in the business circumstances to conclude that Barnmore knew its work was subject to arbitration.
The judgment explained that an arbitration tribunal can rule on its own jurisdiction, but that power did not prevent the court from deciding whether an arbitration agreement existed. The judge did not need to settle whether Article 8 of the Model Law generally requires full judicial review or only a prima facie review: the defendants failed even under the latter approach.
The court refused the requested referral to arbitration. The judgment addresses that application; it does not determine the underlying claim’s merits.