The Incorporated Owners of Xyz v. X Construction Co Ltd. and Another

HCMP003371/1998

1998, No. MP3371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Coram: The Hon Mr Justice Findlay, in Chambers

Dates of hearing: 6 and 7 January 1999

Date of handing down of judgment: 13 January 1999

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JUDGMENT

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The Background

1. The applicant and the first respondent are involved in an arbitration over a construction contract relating to a residential block. The second respondent is the arbitrator. I have before me an application by the applicant to remove the arbitrator under section 25(1) of the Arbitration Ordinance (Cap. 341), which says - "Where an arbitrator . . . has misconducted himself or the proceedings, the Court may remove him."

The First Respondent's Attitude

2. The first respondent's attitude is, according to the affirmation filed on its behalf, "to adopt a neutral stance", although, judging by what Mr Chan said to me, its neutrality may be likened to that of General Francisco Franco during World War II.

The Test and the Approach

3. In the context of this case, Mr Scott suggests that the correct test to apply is this - Do there exist grounds from which a reasonable person would think that there is a real likelihood that the arbitrator could not, or would not, fairly determine the issue in question on the evidence and arguments to be adduced before him? I do not understand Mr Lloyd-Williams to dissent from this proposition. I accept this as a workable test, but perhaps it needs some supplementation. An arbitration is not the same as litigation in this court. People choose arbitration over litigation in court for various reasons, some of which are informality, speed and greater control and intervention by the arbitrator. Indeed, the rules under which this and many other arbitrations in Hong Kong are conducted provide for greater intervention by the arbitrator that might be expected of a judge, although, with the new culture of case management, perhaps we are going the same way. One of the rules says this -

"Article 5 Conduct of the Proceedings

5.1 The Arbitrator shall have the power to adopt wherever possible a simplified or expedited procedure and in any case shall have the widest discretion allowed by law to conduct the proceeding so as to ensure the just, expeditious, economical and final determination of the dispute."

4. If it could be said that the course of litigation in the High Court is a ride to a destination on a tarmac road in a Rolls Royce, arbitration is a journey in a off-road vehicle, rougher and readier, but with the same destination reached, one hopes, more quickly and more cheaply. Of course, that is not to say that the arbitrator is permitted to ignore the basic rules of natural justice. He must not do that, but, with the object of basic fairness and evenhandness always in mind, he should be allowed to take short-cuts and exercise greater control over what is happening, in relation to the pleadings, for example, than might be expected in litigation in this court.

5. The other thing that must be kept in mind when considering applications for the removal of an arbitrator is that this is, as I have said before, a serious step. Whatever precautions might be taken, in the tightly knit Hong Kong arbitration community, it will soon be known that the arbitrator has been removed, with perhaps the worst reasons supposed for this, and his reputation and livelihood is bound to be seriously affected.

The Grounds

6. Although there are other grounds suggested in the applicant's evidence, Mr Scott restricted himself to three broad bases on which he argues that the removal is justified. These three grounds centre on -

1. the arbitrator's response contained in his letter of 18 July 1997 to the applicant's request for further and better particulars;

2. the arbitrator's attitude to a letter by the applicant's representative dated 23 September 1997 saying that the applicant would not pursue its request for further and better particulars of the first respondent's statement of case; and

3. the arbitrator's reaction to a letter from the applicant's representative dated 27 April 1998 asking the arbitrator to rule on the parties' requests for further and better particulars.

The First Complaint

7. The arbitrator received the applicant's statement of defence and counterclaim and its request for further and better particulars on 17 July 1997. The request for further and better particulars was lengthy and detailed. I believe, as is usually the case, that some of these requests were justified, but some were not. It is clear to me that the first respondent's statement of case was sadly deficient in particulars, but, as is so often the case, the drafter of the request for further and better particulars became carried away by his own enthusiasm, and, it is plain, asked every question that he could think of, justified or not. A copy of the request for further and better particulars was sent to the arbitrator by the applicant in order, no doubt to keep him informed. To my mind, it is quite proper for an arbitrator, unlike a judge perhaps, to comment on pleadings, and, in my experience, this is common in Hong Kong.

8. The arbitrator did comment. On 18 July 1997, he wrote to the parties. Firstly, he commented on the applicant's defence, suggesting that it be clarified on one point. He then went on to say -

"As to the Request for Further and Better Particulars, I will most certainly not order that answers be provided within 21 days. The Requests quite clearly include matters which are not pleaded (activities which were not delayed, time "saved" by omissions etc.,) matters of argument (the word "explain" appears more than twenty times - explanations are not "particulars") matters of evidence (on which dates there was rainfall in excess of 50mm) and matters of opinion. And many matters of fact are quite inappropriate: I find it difficult to believe that the Respondent's understanding of the case to be made against him will be greatly enhanced by knowing the names of the workpeople he himself engaged (Request 26a, etc).

I have already indicated that some aspects of the Claim need particularisation. Obviously, the Claimant must address that. If the Respondent wishes to put forward a sensible request for particulars, I will be content to make the appropriate order. But I will make no order in respect of this present request. It is incumbent upon the Respondent to identify properly what particulars it needs."

9. It should have come as no surprise to the applicant that the arbitrator had no intention of ordering that this very voluminous request should be answered within 21 days. It also should have come as no surprise to the applicant that the arbitrator was not happy with many of the requests. I doubt that, the drafter, in his wildest dreams, expected to get answers to all the requests he made.

10. I am not concerned here with whether or not the arbitrator was right or wrong in his assessment of the propriety of some of the requests. It may be that he was wrong in some respects and right in others. What I am concerned about is whether or not the arbitrator acted fairly. What the arbitrator said, in essence, was - "I am not going go through this enormous number of requests to sort out the wheat from the chaff. You should consider properly what you really need and I will make an appropriate order." It seems to me that, in the context of an arbitration, there is nothing at all wrong with that. Indeed, I would have thought that this is precisely what an arbitrator should do to keep down expense and reach a speedy conclusion.

11. Mr Scott objects to the arbitrator's use of the word "sensible", saying this was rude. It certainly was not very polite, but I am inclined to think myself that the making of the large number of requests here in an arbitration, when the drafter must have known that he could not possibly expect to get answers to a lot of them, was not very sensible.

12. Mr Scott says that the arbitrator made a ruling here without hearing the applicant. I do not think it can be said that the arbitrator made a ruling in the sense that his mind was then closed to further submissions. Certainly, that is not how the applicant's representative understood it because he immediately wrote to the arbitrator arguing the matter and asking the arbitrator to consider his submissions.

13. The arbitrator's response was to write on 23 July 1997 saying -

"I am perfectly well aware that the Claimant has not made either of the "points" you summarise. I have done so in pursuance of expeditious and economical determination of the matters in dispute.

. . .

As to the Request for Further and Better Particulars, I have already indicated that the Claimant's Statement of Case needs further particularisation. I am fully aware of the functions of particulars although I thank you for reminding me of those at length. I have not yet been asked to order the supply of any particulars. But I have put you on notice that should you, in due course, seek such an order, there are very many items in your present Request on which you are most unlikely to succeed. Should you wish, nevertheless, to incur Costs in pursuing those items rather than preparing a more appropriate Request, so be it."

14. Only after this letter did the applicant's representative write to the arbitrator on 23 July 1997 suggesting that when the arbitrator said "But I have put you on notice that should you, in due course, seek such an order, there are very many items in your present Request on which you are most unlikely to succeed. Should you wish, nevertheless, to incur Costs in pursuing those items rather than preparing a more appropriate Request, so be it" he was prejudging the matter.

15. Mr Scott says that the arbitrator's attitude here was improper and he was indulging in "terror tactics". I do not see it this way. There is no doubt that the arbitrator was being robust in his approach, but there is nothing wrong with that. What the arbitrator said, in effect, was - "I will hear what you have to say, but, be warned, I am unhappy with many of your requests, and, if you persist in pursuing unjustifiable requests, you may be liable in costs." I see this as quite proper. If it is not, I have been guilty of similar improper conduct many times. Indeed, I have gone much further than the arbitrator on occasions. I have said things like - "Mr Smith, you can argue that point until the cows come home, but I will not be convinced."

16. When the arbitrator said that he had already indicated that the first respondent statement of case needed further particularisation, he was referring to his letter of 17 June 1997 in which he said -

"There are aspects of the Claim where I imagine the Respondent may seek further particulars (e.g. no detail of the calculation of the amounts of Direct Loss and Expense at paragraph 20 is given). While not provided for in Directions, I would usually consider it appropriate for any Request for Further and Better Particulars to be served at the same time as the next statement, in the present instance at the same time as the Statement of Defence and Counterclaim."

17. The applicant's representative wrote another letter on 23 July 1997 in which he said -

"We write further to our letter . . . dated 21 July 1997 in which we indicated that the Respondent would be content for you to consider its submissions therein and to issue directions regarding its Request for Further and Better Particulars of the Statement of Case.

By reference to your letter dated 18 July 1997 to the parties, it is our understanding that at least you would consider some parts, if not all, of the said Request appropriate though owing to reasons set out in our letter dated 21 July 1997, it is submitted that the whole Request is primarily reasonable and necessary.

In order to expedite the matter, we would respectfully suggest that upon considering our letter dated 21 July 1997, the Claimant should identify those individual requests set out in the said Request (say within 7 days) to which it will not respond by giving further and better particulars as sought. You may then examine each of such individual requests, determine and direct whether and when those further and better particulars sought therein should be provided by the Claimant. The parties then address you separately on the issue of costs regarding the application for your order.

We hope this suggested approach can minimise the amount of correspondence amongst all concerned on the subject.

We look forward to your and the Claimant's view on the above suggested approach."

18. On 24 July 1997, the arbitrator responded as follows -

"I thank you for your two letters concerning Further and Better Particulars of the Claimant's Statement of Case, dated 23 July 1997.

As to the second paragraph of your first letter, I can certainly confirm that the Request for Further and Better Particulars contains some items that I would consider unobjectionable.

I would expect the process to be as follows.

1. The Claimant will, without a formal Order, provide various of the particulars requested and will, in respect of others, object stating the reason for abjection.

2. Upon receipt of the Claimant's answers and objections, the Respondent will review the Requests and decide which of the unanswered Requests it wishes to pursue.

3. The Respondent will then, in respect of each and every unanswered item (or class of items) which it still wishes to be answered notwithstanding the Claimant's objection, make a reasoned Application for an Order.

4. After hearing argument, I will give a Direction as to which Requests should be answered and which should not, and when.

5. Again after taking submissions I will issue an appropriate Costs Order.

All of that is perfectly ordinary. I am quite content to adopt a different process if agreed between the parties. But am not content to consider, en masse, several hundred requests. The Respondent will, of course, have to provide his justification for each and every one which he pursues and to which objection is taken.

I do not think it appropriate to respond, at this time, to the respondent's second letter. I will, naturally, dispose of the matter at a more appropriate juncture should the need arise."

19. Mr Scott also criticised the arbitrator for saying that he would not consider "en masse, several hundred requests". I do not think there is room for legitimate criticism here. The arbitrator did not only say this, he also said that he wanted justification for every request, and, of course, that is precisely what any judge would want.

20. In any event, the applicant's representative was not upset about the arbitrator's attitude. He responded to the arbitrator's letter on 15 August 1997, seeming to approve the arbitrator's "pragmatic" approach. He said -

"We refer to your letter dated 24 July 1997 in which you kindly suggested a pragmatic approach to deal with the Request for Further and Better Particulars of the Statement of Case.

It is unfortunate that in the Claimant's letter dated 14 August 1997, it categorically refused to answer any part of such Request notwithstanding that (as you have correctly pointed out) the Request contained items which would be unobjectionable, if we insisted on a strict time limit.

We are taken aback by the Claimant's audacity in expressing such uncooperative attitude.

We consider that a timetable is both desirable and necessary for the resolution of the matter.

In view of the Claimant's attitude towards the matter, the Respondent is left with no alternative but to seek your formal order, at this stage, for a deadline for completion of Step 1 set out in your letter dated 24 July 1997.

The Respondent is content for you to fix a reasonable deadline which you consider appropriate in view of the Claimant's own estimate given in its letter dated 6 August 1997 that it would take 28 days to give a substantive response/objections to the Request."

21. The arbitrator's letter of 21 August 1997 said -

"It is, of course, usual that a Party amending its case gets consent to do so on the understanding that it will bear the costs arising out of the amendments. On such a basis would not expect objections (although of course, the Respondent is free to raise them). But it also usual for amendments to be notified (in draft) to the other party (not to me) in advance, so that objection can be raised if appropriate. Paragraph 3 of [the applicant's representative's] letter dated 20 August is, in my view, a proper process.

If a Consent Order for amendment is given then I would expect:

a) The amendments to address the Respondent's existing Request for Particulars but to be somewhat more than merely answers to that Request;

b) A reply to the Request for Particulars to be served at the same time at least in respect of those Requests which the Claimant objects to answering. I think also to be fair, the Claimant should indicate which Requests (if any) it considers have been answered by the Amended Statement of Case;

c) Any Request for Particulars of the Defence and Counterclaim to be served, in this instance, at the same time. While, of course, the Defence may be amended in response to the amended Claim, I consider that time will be saved by drawing attention now to the parts of the present Defence of which particulars are sought. This is especially the case in respect of the Counterclaim.

I would then suggest that the Respondent have about 28 days to:

d) Make and serve any consequential Amendments to the Defence;

e) Review the Particulars of the Claim which have been provided and, if not satisfied make a formal application for Answers;

f) Answer the Request for Particulars of the Defence (separately from Amendment, as with the Claim) or provide objection to so doing;

g) Serve any new request for Particulars arising strictly from the Amendments.

That will then be a review point with any argument on Particulars, and service of the Reply and Defence to Counterclaim to follow. I do not think any useful purpose will be served by my considering Discovery at this stage. In my view (which, of course, you are both free to challenge) any process of Discovery full or limited, should follow the close of pleadings. While, certainly, earlier discovery might sometimes make pleading simpler, nevertheless the basic principle that a Party should make his own case out before fishing through the other Party's records remains paramount. Hence, the nature of Discovery necessary in this instance can be considered later."

22. This letter reflects, in my view, a sensible and practicable approach to matters with a view to getting the arbitration moving along on the right tracks.

23. On 26 August 1997, the arbitrator wrote to the parties giving assistance on the further progress of the case. He said -

"In short, the Claimant should sort out its case by 10 September, 1997, and any request for further time beyond that will be regarded unfavorably, without compelling reason. The Respondent, after that, should also sort out its case, amending in response to Amendment, seeking leave for any other amendments, and so forth. For clarity, I have set out a fully detailed Order for Directions; but I have set it out as a draft. Any objection should be notified to me within seven days, failing which the Directions will be confirmed.

Its seems to me that any costs in connection with this matter basically derive from either the extended time for service of various items requested by the Claimant or from the Claimant's wish to amend Pleadings before they have even closed. In either case, Costs would be to the Respondent. I will so rule, subject similarly to any objection made within seven days."

24. This seems to me to reflect an even-handed approach by the arbitrator. The arbitrator's letter dated 16 October 1997 following a request by the first respondent for an extension of time said -

"Before formally granting the extension sought which refers specifically to the Amended Statement of Defence and the Reply to the Request for Further and Better Particulars of the Defence and Counterclaim, I should enquire whether the Respondent will be seeking Particulars of the Amended Statement of Case in accordance with Direction 1.2(e) for which time should also be extended."

25. The applicant took up the invitation. Again, this is a demonstration of the arbitrator's even-handed attitude.

26. This complaint does not, in my view, disclose any reasonable basis for removing the arbitrator.

The Second Complaint

27. On 2 September 1997, the arbitrator gave directions. The relevant part of these reads -

"2.1 On or before 10 September, 1997, the Claimant shall serve a Reply to the Request for Further and Better Particulars of the Statement of Case dated 17 July 1997, identifying answers to the individual requests or specifying that the request is answered In the proposed Amended Statement of Case or showing reason for objection to answering.

2.2 Within fourteen days of service of the Reply to the Request as aforesaid the Respondent shall serve details of any matter where Particulars are said to be insufficient or where any objection by the Claimant is contested by the Respondent.

3.1 On or before 10 September, 1997, the Claimant shall serve any Request for Further and Better Particulars of the Defence.

3.2 Within thirty-five (35) days of the Request for Further and Better Particulars of the Defence the Respondent shall serve a Reply to that Request, in like manner to the Claimant's reply at 2.1 above, and within fourteen days thereafter the Claimant shall serve details in like manner to the Respondent's service at 2.2 above.

4.1 The Costs of and in connection with this Order shall be to the Respondent in any event.

4.2 For the avoidance of doubt, the Costs of this Order shall exclude the Costs of the Request for Particulars of the Statement of Case dated 17 July 1997 and any reply thereto."

28. These are a sensible set of directions. It should be noted that direction 4.2 only excludes costs of the request and the reply from the earlier order. What the costs order should be on these was left open.

29. On the 23 September 1997, the applicant's representative wrote to the arbitrator saying -

"We refer to paragraph 2.2 of your Order for Directions No 2, the Claimant's Amended Statement of Case and its so called "Further and Better Particulars" of the Statement of Case.

Whilst there has been improvement in provision of particulars in the Claimant's latest pleadings, various parts of its pleadings remain unsatisfactorily particularised.

Having said that, the Respondent is not prepared to spend further costs and time to pursue its Request for Further and Better of the Statement of Case. Instead, the Respondent hereby reserves the right to make necessary application for striking out those parts of the Claimant's pleadings which are insufficiently particularised and/or embarrassing. The Claimant is hereby put onto notice of the same."

30. There was some question raised here as to whether or not the applicant's representative, when saying that the applicant would not pursue its request in relation to the statement of case, meant the statement of case or the amended statement of case. By this time, an amended statement of case had been served. The applicant then had the statement of case, the amended statement of case and the further particulars of the statement of case. With these before him, the applicant's representative said that the applicant was not prepared to spend further time and costs in pursuing its request relating to the statement of case. To my mind, to suggest that the applicant still had in mind pursuing a request for further and better particulars of the amended statement of case does not make much sense. To say that the applicant was considering an application to strike out and a request for particulars that would, presumably, if answered, remove the basis for striking out, is not logical, especially when one considers that the professed basis for not pursuing the particulars was to save time and money. To pursue independently a request for particulars of the amended statement of case would not save time and costs. It is clear to me that what the applicant's representative was saying was -"We have what we have. We say that we have a basis for striking out. We are not going to seek further particulars."

31. That is the way the arbitrator interpreted what the applicant was saying, and I think he was right. On 29 September 1997, the arbitrator wrote to the parties, referring to the letter from the applicant's representative mentioned immediately above, and said -

"I take it therefore, that none of the objections by the Claimant to the provision of particulars as requested are contested by the Respondent. I note also that the Respondent has not served any details of any Particulars said to be still insufficient, but has made only a generalised complaint of unspecified insufficiency. In any application to strike out, I will be bound to consider the objections to provision of answers as having been accepted by the Respondent.

With respect to the Costs of the Request for Further and Better Particulars of the Statement of Case and the Response to it, I have reviewed the relevant pleadings. I have noted that some particulars have been provided; that many requests have been objected to; and that the Claimant has not contested a single objection. I am, therefore, minded to order that each Party bears its own costs in this respect. Should either party seek a different order, please notify me within fourteen days. It is only necessary to notify the order sought, not the reasons. I will convene an oral hearing to consider the reasons if a different order is sought, and it is not necessary to rehearse those reasons in correspondence."

32. I believe that the arbitrator was wrong in his view that, in any application to strike out, he would be bound to consider that the objections had been accepted. The applicant's representative had made it clear that he was not going to pursue the particulars, but made it equally clear that he did not accept that the particulars were not necessary to make a unobjectionable statement of case. But I am not concerned with correctness of the arbitrator's view. Nor am I concerned with an immediate final decision. The arbitrator was talking about a situation that might arise in the future if the applicant applied to strike out. In that situation, if it were to arise, no doubt the applicant would have argued, as it did even before then, that the arbitrator's view was incorrect. There is no reason to think that the arbitrator would not have listened to the applicant on this at the appropriate time.

33. As I say, the applicant did argue that the arbitrator was wrong in his view, and the arbitrator listened to the submissions made. The applicant's representative wrote to the arbitrator on 30 September 1997, saying -

"We feel obliged to point out that as matter of fact, in no part of our letter ... dated 23 September 1997 did we say or suggest the Claimant's objections to provision of answers to the Request for Further and Better Particulars of the Statement of Case had been accepted by the Respondent. If, which is denied, such objections were accepted, we would not have issued our letter dated 23 September 1997. We note that the Claimant has not made your suggested acceptance. It is, with respect, supplied unilaterally by yourself. The Claimant, now being represented by solicitors, should need no assistance to present this point if it wishes to. In any event, we trust our letter dated 23 September 1997 and this letter have set out clearly the Respondent's position on the matter."

34. The arbitrator's reply to this, dated 3 October 1997, said -

"I think I should make dear that nowhere in my letter dated 29 September 1997 do I suggest that "the Claimant's objections to provision of answers to the Request for Further and Better Particulars of the Statement of Case had been accepted by the Respondent." I said that in a particular future circumstance (within the Respondent's control) because those objections were not contested by the Respondent at the proper time in accordance with Directions, I will be bound to consider them as having been accepted."

35. So having considered what the applicant had to say, the arbitrator stuck to his view. There is nothing procedurally unfair in that.

36. The first respondent's representative then chipped in by a letter dated 16 October 1997 saying -

"With respect, we consider that by letter dated 23 September 1997, the Respondent had expressly waived its right to request Further & Better Particulars of the Amended Statement of Case, but merely reserved its right to apply to strike out the whole or part of the Amended Statement of Case within the period limited to make the said request under Order for Directions No.2. This issue is spent and therefore closed and should not now be reopened by entertaining any application of extension of time for the Respondent to serve a Request for Further & Better Particular of the Amended Statement of Case. It is still open for the Respondent to apply to strike out part or the whole of the Amended Statement of Case as previously threatened. We shall therefore vigorously contest any application for an extension of time for serving a Request for Further and Better Particulars of the Amended Statement of Case on the basis of res judicata estoppel."

37. The applicant's representative then wrote on 16 October 1997 -

"With respect, we are taken aback by the Claimant's audacity to twist what we said in our letter . . . dated 23 September 1997, albeit unintentionally perhaps. In that letter, we said "the Respondent is not prepared to spend further costs and time to pursue its Request for Further and Better Particulars of the Statement of Case", i.e. the original Request dated 17 July 1997. We have never said the Respondent will not pursue a fresh Request for Further and Better Particulars of the Amended Statement of Case.

In any event, our letter dated 23 September 1997 only said what the Respondent was prepared or not prepared to do at the time. The letter has no binding effect. As a matter of law and practice, a party is entitled to serve Requests for Further and Better Particulars and the Arbitrator is entitled to order such particulars upon a party's request at any time unless there is a substantial risk of the hearing being delayed or of other prejudice being occasioned to the opposite party.

In the premises, by serving a Request for Further and Better Particulars of the Amended Statement of Case, the Respondent is only requesting something which it is entitled to do. We fail to see how such Request could possibly delay the hearing or prejudice the Claimant. If the Claimant has sufficient particulars to support its Amended Statement of Case, there exists no reason why it should avoid providing such particulars, in particular, when it has yet to see what the Respondent's request is.

The Latin phrase "res judicata estoppel" appears in the Claimant's letter is not found in leading textbooks. We presume the Claimant actually intend to refer to "estoppel per rem judicatam", je estoppel by judgment (see para 25-010 of Chitty on Contracts 27th Edition). Our letter dated 23 September 1997 concerns nothing which has been decided by a previous judgment or arbitration award. Indeed the whole letter has nothing to do with any previous judgment or arbitration award. The doctrine is therefore most irrelevant.

Owing to aforesaid, we fail to see any merit of what the Claimant said in its letter dated 16 October 1997. The Respondent now formally applies for an extension of time for serving a Request for Further and Better Particulars of the Amended Statement of Case as proposed in our earlier letter dated 16 October 1997."

38. The arbitrator's response is contained in his letter of 20 October 1997 -

"I do not think a great deal of comment is called for, although I will observe that "res judicata pro veritate accipitur" (and the simpler form "res judicata") certainly appears in my text books and dictionaries and appears to refer to all competent decisions, not only judgements or awards. I presume the Claimant referred to that, and I do not share the Respondent's objection to the nominative case.

My Direction, as requested and now clarified by the Respondent and agreed to by the Claimant is now enclosed. I should, perhaps make it clear that the Particulars of the Amended Statement of Claim referred to are particulars of those parts which have been amended. We can, perhaps, consider any problems after service of the Request."

39. Whatever the position is about the arbitrator's view on how he would approach an application to strike out, it is not relevant because this did not happen. What the applicant's representative now wanted to do was to pursue a course that, as I have found, he said he would not pursue. The arbitrator decided, after hearing what the parties had to say, that the applicant could pursue an application for further particulars, but only in relation to those parts of the statement of case that had been amended. That decision may be right or it may be wrong, but I do not think it can be said that the arbitrator reached that decision by a process that was inherently unfair. He heard what the parties had to say, and made his decision.

40. I find that there is no valid ground here for removing the arbitrator.

The Third Complaint

41. On 17 February 1998, the applicant's representative wrote to the first respondent's representative, with a copy to the arbitrator, complaining that further particulars supplied were inadequate and deficient. This was followed by letters of 25 February 1998 and 24 March 1998 asking for a response. On 26 March 1998, the first respondent's representative wrote saying that "It is expected" that the requested particulars would be sent within 21 days. On 9 April 1998, the first respondent's solicitors replied, giving some further particulars and explaining why others were not given. On 16 April 1998, the applicant's representative wrote arguing the applicant's case for particulars. Having failed to get any satisfaction, the applicant's representative then wrote to the arbitrator on 22 April 1998 in these terms -

"As you may recall, we wrote to the Claimant on 17 February 1998 pointing out various deficiencies on the Claimant's Further and Better Particulars ("FBPs") of the Amended Statement of Case and requesting the Claimant's provision of outstanding FBPs. On 25 February 1998, we also served to the Respondent a Request for FBPs of the Claimant's Statement of Reply and Defence to Amended Counterclaim.

About one month later, we wrote to the Claimant on 24 March 1998, pointing out that the Claimant had yet to provide the aforesaid FBPs.

The Claimant wrote to us on 26 March 1998 promising that the requested FBPs would be sent to us within 21 days therefrom, i.e. by 16 April 1998.

The Claimant provided further FBPs of its Amended Statement of Case on 9 April 1998 but unfortunately as explained in our letter dated 16 April l998, such FBPs remained unsatisfactory; and contrary to the Claimant's promise dated 26 March 1998, no FBPs of the Statement of Reply and Defence to Amended Counterclaim has even been provided by the Claimant. We wrote to the Claimant on 17 April 1998 on these matters but our effort was in vain. Up to date, the Claimant has not even acknowledged receipts of our letters dated 16 and 17 April 1998.

The Respondent is left with no alternative but to seek the following orders from you:

1. That the Claimant shall serve to the Respondent proper FBPs of the Amended Statement of Case addressing those deficiencies set out in the Claimant's letter . . . dated 16 April 1998 within 7 days (or within such period which the Arbitrator considers appropriate).

2. That the Claimant shall serve to the Respondent proper FBPs of the Statement of Reply and Defence to Amended Counterclaim within 7 days (or within such period which the Arbitrator considers appropriate).

3. That all costs in relation to the Respondent's Requests for FBPs of the Amended Statement of Case and of the Statement of Reply and Defence to Amended Counterclaim and in relation to the Claimant's responses thereto and the costs of this application be all to the Respondent in any event.

We respectfully submit that the above orders are reasonable given the fact that the FBPs in issue have been requested long time ago and that these orders are primarily asking the Claimant to honour its promise given on 26 March 1998. More importantly, the Respondent will need such FBPs to prepare and to conduct its case.

We and our client would therefore be grateful if you could kindly grant the above orders. We and our client look forward to receiving your decision on the matter."

42. The arbitrator then wrote to the first respondent on 23 April 1998 in these terms -

"You should have received a copy of [the applicant's representative's] letter dated 22 April, 1998, on behalf of the Respondent.

I consider this matter should be dealt with without further delay. Please confirm by close of business tomorrow (24 April, 1998) whether you consent to the Order sought or whether you contest it or seek any change to it."

43. This is hardly the action of an arbitrator who could be said to be siding with the first respondent.

44. The first respondent's representative replied on 24 April 1998 as follows -

"We are instructed to contest the application of [the applicant's representative] and we hereby apply for an Order that the Respondent reply to Supplemental Requests 1, 2, 3, 4, 5 and 6 of the Claimant's Request for Further and Better Particulars the Further and Better Particulars of the Amended Defence and Counterclaim dated 16 January 1998, which we request to be heard after the Respondent's application (whether on the same day or shortly after the date of the hearing date of the Respondent's application, as our client's decision to proceed or revise our application may be affected by your decision on the scope of the parties' duty to provide particulars)"

45. The applicant's representative then wrote to the arbitrator on 27 April 1998 in this way -

"We refer to the Claimant's letter dated 24 April 1998 regardings further and better particulars ("FBPs"). The Respondent's position is as follows:

1.The Claimant now contest the Respondent's application dated 22 April 1998 which primarily asks the Claimant to provide those FBPs which it agreed to provide in its letter dated 26 March 1998. The Respondent requested for such FBPs as early as in February 1998. The Claimant has not contested provision of the same until two months later after the Respondent has been forced to seek formal orders from you on the matter on 22 April 1998 as a result of the Respondent's failure in responding positively on the matter.

2.The Respondent's Reply to the Claimant's Request for FBPs of FBPs of the Amended Defence and Counterclaim was served on 2 March 1998. The Claimant has not made any complaint on such reply and it is surprising that after receipt of your letter dated 24 April1998 on the Respondent's application for your orders compelling the Claimant to provide those FBPs which the Claimant has agreed to provide, the Claimant now applies for an order that the Respondent reply to various "Supplemental Requests" of the said Claimant's Requests (to which the Respondent had already provided a satisfactory response as early as on 2 March 1998). The Claimant's intention in asking such order at this stage must be, with respect, read in such context.

3.The Respondent has provided sufficient FBPs to the Supplemental Requests 1 to 6 of the Claimant's Request for FBPs of FBPs of the Amended Defence and Counterclaim. This is more apparent by comparing the Respondent's FBPs with those the Claimant so called "FBPs" which the Claimant previously provided.

4.We fail to see any necessity to deal with the Claimant's application after the Respondent's application as the former does not depend on your ruling on the latter. The Claimant seems to suggest that it will "tailor" its application in the light of your ruling on the Respondent's application. Again, the intention of the Claimant's application has to be judged in such context.

5.We consider a hearing on the parties' applications unnecessary. The parties' requests for FBPs, responses or lack of response thereto are well recorded in writing. We respectfully submit that the Arbitrator should be able to rule on the propriety of such requests and the sufficiency of any responses by examining such requests and responses and to make his decision. We submit that any hearing on the matter will waste costs as the parties will primarily refer the Arbitrator back to those documents which set out the parties' contentions. For these reasons, the Respondent is contented that the Arbitrator rules on the applications on documents only without any hearing. In fact, this "dealt with by correspondence" arrangement was agreed in the meeting for directions on 12 March 1998."

46. In view of the contents of this letter, not surprisingly, the arbitrator proceeded to decide the matters that had been referred to him, and, in a detailed letter dated 29 April 1998, told the parties his views. But these were not final decisions. The last paragraph of the arbitrator's letter reads - "Prior to preparing a formal order in accordance with the foregoing, I invite your submissions, by close of business on 1 May 1998, on any matter you consider inadequately dealt with and, of course, on the Costs involved."

47. The first aspect of the applicant's complaint here is that the arbitrator proceeded to decide the matters without calling for further submissions. I must say I find this point entirely without merit. Nothing could be clearer than the fact that it was the applicant's wish that, after receiving the letter from the applicant's representative dated 27 April 1998, the arbitrator should proceed immediately to decide the matters before him. That was what the applicant asked him to do then, and it ill lies in the mouth of the applicant to complain now that the arbitrator did what the applicant suggested he should do.

48. The fact that the arbitrator did what the applicant contemplated he should do is amply supported, not only by the terms of the letter by the applicant's representative dated 27 April 1998, but also by the circumstance that, thereafter, the applicant did not complain, until now, about what the arbitrator did.

49. The other aspect of this complaint is that the arbitrator failed to deal with the requests for particulars from each side in a even-handed manner. The arbitrator did not give the applicant all the particulars he wanted, but he did not give the first respondent all the particulars it wanted either. I have not examined whether the arbitrator was right or wrong in making the various decisions. That exercise would be futile. But what is clear to me is that there is no convincing evidence that the arbitrator favoured, or appeared to favour, the first respondent over the applicant.

50. Mr Scott points to some aspects of the arbitrator's decisions that he says show that the arbitrator was not being fair to the applicant. One of these is a statement made by the arbitrator in his letter of 29 April 1998 -

"At paragraph 13(d), the Respondent has made a positive pleading that at all material times the Claimant had no tile on site for carrying out external wall tiling. The Claimant has quite properly requested definition of the expression at all material times. The Respondent's clarification that the expression means those times which the Claimant alleged being delayed by events which the Claimant alleged the Respondent was responsible for.

Thus, I take it that the Respondent's case is that at no time whatsoever during the periods of alleged delay did the Claimant have any tiles on site. The Respondent will be held to that pleading.

No further Particulars are necessary. If, however, there were tiles on site at any of those times, the Respondent's allegation will fail."

51. I do not see anything much wrong in this. If the applicant wishes to make such a precise pleading, he cannot complain that he may not be able to prove it so precisely. If the applicant thinks that he wants to say that there were insufficient tiles, or some other formulation that is less precise, it should do so.

52. In respect of other specific points raised by Mr Scott, the arbitrator may be wrong, but they do not, in my view, provide any acceptable evidence that the arbitrator was, or appeared to be, biased against the applicant.

53. I find that there is nothing in this ground either.

General

54. As to the emphasis in this arbitration on further and better particulars, Mr Scott rightly anticipated that I would not impressed with the parties' anxiety to obtain these. In my experience, far too much time and money is wasted in this sort of exercise. Of course, one party is entitled to know the other party's case, but it is seldom in litigation before me that much of value is received in return for the often great expense of pursuing requests for further particulars. This must be all the more so in the more informal culture of arbitration, particularly when one has a construction expert sitting as an arbitrator. In an arbitration, an expert arbitrator is well able to come to a fair and sensible determination without a case that is pleaded with great precision. I think I detect that the arbitrator in this case may have shared this view, and sought to restrict the obligation to supply particulars to what was really needed for the purpose of concluding the dispute in a fair and expeditious manner. In that, he is to be encouraged, not removed from office.

55. No one could say that the arbitrator acted other than robustly. He made some decisions that I think were wrong, and he did other things that another arbitrator or judge might not have done. He is not, in other words, perfect, but there are not many perfect judges either, and perfection is not what a party is entitled to expect in litigation or arbitration. It is clear that the arbitrator attended to matters promptly, some might say too promptly, and with dedication. I get the firm impression that he was a man honestly trying to do his best in this arbitration that was made more complex than necessary by the behaviour of the parties. Indeed, as I understand him, Mr Scott does not want to urge me to think otherwise.

56. At the end of the day, I am nowhere near satisfied that the applicant has any good and valid reason to believe that there is any real likelihood that the arbitrator has not dealt with, and will not deal with, this matter fairly on what is put before him.

57. I am conscious of the fact that we now have a situation in which a party to an arbitration has made an unsuccessful attempt to remove the arbitrator. The applicant may well feel uncomfortable with that, but there is nothing I can do about it. It may be that the arbitrator will feel equally uncomfortable. Following this decision, it will be necessary for him to strive, even more than before, to ensure that his actions give no cause for the applicant to think that there is any lack of even-handedness. This may lead the first respondent to fear that the arbitrator will lean over backwards in this endeavour. In this situation, the parties and the arbitrator may decide that this is an appropriate case for the arbitrator to step down voluntarily. It seems to me that this is a case in which another arbitrator can take over without a great deal of inconvenience. But that is a matter for the parties and the arbitrator.

The Result

58. In the result, the application fails and it is dismissed.

The Costs

59. The question of costs has not been argued, but it seems to me that there is no obvious reason why they should not follow the event. I make an order nisi that the applicant pay the costs of the respondents.

Representation:

Mr John Scott, SC, and Mr Alfred Fung, instructed by Messrs William Sin & So, for the applicant.

Mr Anthony Chan, instructed by Messrs Siao Wen & Leung, for the first respondent.

Mr AM Lloyd-Williams, of Messrs Herbert Smith, for the second respondent.