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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Earthmoving v Miller Construction Ltd  EWCA Civ 654 (6 April 2001)
Cite as:  EWCA Civ 654,  2 All ER (Comm) 598,  BLR 322
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge Richard Seymour QC)
Friday, 6th April 2001
B e f o r e :
LORD JUSTICE CLARKE
MR. JUSTICE BENNETT
|JAMES MOORE EARTHMOVING||Appellant|
|- v -|
|MILLER CONSTRUCTION LIMITED||Respondent|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. J. MARRIN Q.C. and MISS K. GORDON (instructed by Messrs Dundas & Wilson) appeared on behalf of the Respondent.
Crown Copyright ©
"Whenever an application is made to the court to set aside or remit an award on grounds of misconduct, 'technical' or otherwise, the notice of motion should be served on the arbitrator or umpire concerned. He may then either (a) take an active part in the proceedings or (b) file an affidavit for the assistance of the court or (c) take no action." We entirely agree. It follows that the arbitrator should have been given notice of the new ground on which it was suggested that he might have been guilty of misconduct.
(2) The evidence does not support a finding of misconduct, either on the basis found by the judge or on the fourth ground originally advanced by Miller. In these circumstances, we are of the view that nothing which occurred in this case reflects adversely on the arbitrator in any way at all.
(3) We have every confidence that this experienced arbitrator will be able to resolve the remaining matters fairly when they are remitted to him in accordance with the agreed order of the court.
(4) The question whether an arbitrator should be removed or the matter remitted to an arbitrator in the case of misconduct may well depend upon the answer to the objective question formulated by Mance LJ in Lovell Partnerships Northern Limited v A W Construction PLC (1996) 81 BLR 83, 99, namely: "... whether a reasonable person would no longer have confidence in the present arbitrator's ability to come to a fair and balanced conclusion on the issues if remitted."
(5) In any event, we are firmly of the view, based on the material that has been put before us so far, that this is not such a case.