Clarke Quarries Ltd V Pt Mcwilliams Ltd

The true construction of the contract was that the contractor was entitled to pursue its reference to adjudication despite having referred the same dispute to arbitration
 

 

CLARKE QUARRIES LTD V PT Mcwilliams LTD
Ireland, High Court
Laffoy J
24 August 2009
 
The contract between the employer and the contractor provided for the resolution of disputes by arbitration and adjudication. Issues arose which led to contested notices of suspension and termination being issued by the parties against each other. The contractor served a notice of adjudication claiming that the employer had wrongfully terminated the contract. The adjudicator decided that the employer’s notice of termination was wrongful. The employer issued two notices of referral to arbitration, one relating to the subject matter of the decision and the second relating to the contractor’s notice of suspension. The contractor served notices of arbitration relating to alleged wrongful termination, contractual administration failures and failures to pay sums said to be due and a notice of adjudication relating to monies said to be due flowing from the wrongful termination. The employer issued court proceedings seeking an injunction restraining the contractor from further pursuing this adjudication.
 
Paragraph 1 of the sixth schedule to the contract dealing with adjudication provided that except where otherwise specifically provided in this contract, any dispute was to be subject to the provisions of this schedule. Paragraph 3.12 provided that unless and until the dispute was finally determined by arbitration, by legal proceedings or by a written agreement between the parties, the adjudicator’s decision was to be binding on both parties who forthwith were to give effect to the decision and that if either party did not comply with the adjudicator’s decision, the other could bring court proceedings to secure such compliance. Paragraph 4.2 provided that if the parties agreed that the adjudicator’s decision would be final or if neither party referred the dispute to arbitration within the said 15 working days of the adjudicator’s decision in accordance with paragraph 4.1, the adjudicator’s decision was to be deemed final and binding on both parties.
 
Laffoy J held that the true construction of the contract was that the contractor was entitled to pursue its reference to adjudication despite having referred the same dispute to arbitration. Without expressing a definitive view it appeared that the contract envisaged a dispute within the provisions of the sixth schedule to the contract being referred to adjudication as a preliminary to it being referred to arbitration. There was nothing in the contract which expressly or by implication precluded a party who referred a dispute to arbitration from referring the same dispute to adjudication prior to the determination of the arbitration.
 
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