ARBITRATION


Construction contract - 'dispute or difference' to be construed inclusively - engineer deciding disputes obliged to act independently honestly and fairly

Amec Civil Engineering Ltd v Secretary of State for Transport: CA (Lords Justice May, Rix and Hooper): 17 March 2005



The contractors carried out road works under a construction contract with the secretary of state based on the ICE Conditions of Contract, 5th edition. Clause 66, as amended by the parties, provided for the reference of any 'dispute or difference' to an engineer, whose decision was final and binding subject to arbitration.


The secretary of state's agent informed the contractors that they might be responsible for defects which had come to light the previous month. The defects were discussed at a meeting but the contractors refused to accept responsibility. The agency sent a letter of claim to the contractors, who replied that they could not comment on liability. The agency referred the 'dispute' to the engineer for a decision under clause 66.


The engineer decided that the defects had resulted from the contractors' breach of contract. A few days before the expiry of the statutory time limit for commencing arbitration, the secretary of state gave the contractors notice of arbitration. The contractors challenged the arbitrator's jurisdiction on the grounds that there was no 'dispute' capable of referral to the engineer; that his decision was invalid and there was nothing capable of referral to arbitration; and the engineer's decision was vitiated by procedural unfairness.


The arbitrator issued an interim award accepting jurisdiction and the judge refused to set aside the award for lack of jurisdiction. The contractors appealed.


Vivian Ramsey QC and Simon Hughes (instructed by Wragge & Co, Birmingham) for the contractors; John Marrin QC and Sarah Hannaford (instructed by the Treasury Solicitor) for the secretary of state.


Held, dismissing the appeal, that clause 66 was not to be construed with legalistic rigidity so as to impede the parties from starting timely arbitration proceedings; that 'dispute or difference' in clause 66 was to be interpreted inclusively; and that, in the circumstances, including the imminence of the end of the statutory limitation period, there was a dispute or difference capable of being referred to the engineer at any time after the meeting when the contractors had indicated that they did not accept responsibility; that an engineer deciding a dispute or difference under clause 66 was required to act independently, honestly and fairly, so long as fairness was not understood as encompassing the rules of natural justice; and that in the circumstances the engineer had considered the matter properly and sufficiently.






IMMIGRATION


Immigrants not entitled to remain under Immigration Rules - appeals to adjudicator alleging removal disproportionate and infringing convention rights - adjudicator to allow appeal only if exceptional case made out

Huang v Secretary of State for the Home Department; Abu-Qulbain v Same; Kashmiri v Same: CA (Lords Justice Judge, Laws and Latham): 1 March 2005


The first applicant successfully appealed to an adjudicator against the home secretary's decision that it was not disproportionate to remove her to China. The Immigration Appeal Tribunal reversed that decision. The first applicant appealed.


The second applicant appealed against a decision of the appeal tribunal that his removal to Lebanon would not be disproportionate, and the third applicant appealed against the rejection of his claim that his removal to Iran would be disproportionate.


The applicants, who accepted that they could not qualify to remain under the Immigration Rules, relied on article 8 of the European Convention on Human Rights. The three appeals were heard together for determination of the issue whether an adjudicator's assessment of proportionality was limited to a review of the home secretary's decision or whether the adjudicator had to decide for himself, on the merits, whether the removal would be proportionate.


Nicholas Blake QC and Raza Husain (instructed by TRP Solicitors, Birmingham) for the first applicant; Nicholas Blake QC and James Collins (instructed by Sheikh & Co, London) for the second applicant; Nicholas Blake QC and Ranjiv Khubber (instructed by Luqmani Thompson & Partners, London) for the third applicant; Monica Carss-Frisk QC and Adam Robb (instructed by the Treasury Solicitor) for the home secretary.


Held, allowing the first appeal and dismissing the others, that where the immigrant had no entitlement to remain in, or enter, the UK under the Immigration Rules, on an appeal to determine whether a decision to remove him was disproportionate and an unlawful interference with his right to private and family life under article 8, an adjudicator's duty was to see whether an exceptional case had been made out such that proportionality required a departure from the relevant rule in the particular circumstances; and that the adjudicator could allow an appeal brought on such grounds only if he concluded that the case was so exceptional on its facts.