Read the full judgment text of HCCT000120/1998 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 2 August 1999 before The Hon Mr Justice Findlay.
Arbitration — Appeal — Leave to appeal — Arbitration Ordinance (Cap. 341) s.23 — Whether question of law arising out of award — Contract dispute regarding piling works — Allegations of arbitrator misconduct — Whether findings constituted questions of law or fact — Application of precedent — Costs awarded on common fund basis — Leave to appeal refused on all grounds. The dispute concerned whether the applicant could execute works under the piling contract according to the contract and method statements, challenged on factual and legal grounds. The applicant alleged misconduct by the arbitrator including failure to provide natural justice, failure to resolve expert disputes, and improper consideration of evidence. The court held no misconduct was found; the arbitrator properly evaluated conflicting evidence and exercised discretion appropriately. The legal grounds raised were factual determinations rather than questions of law arising from the award, thus leave to appeal was refused. The costs order on a common fund basis was a discretionary decision not subject to appeal on a question of law. The applicant was ordered to pay costs. This judgment reinforces the limited scope for court intervention in arbitration awards absent valid legal questions arising from the award itself and confirms the deference courts owe to arbitrators’ findings of fact and discretionary decisions in costs.
Legal issues: First Allegation of Misconduct · Second Complaint of Misconduct · Third Allegation of Misconduct · Whether leave to appeal under s.23(3)(b) of Arbitration Ordinance should be granted on question of law regarding legal or physical impossibility under GCC 15 · Whether leave to appeal should be granted on alleged legal error dismissing contractual method statement · Whether distinguishing Yorkshire Water Authority v Sir Alfred McAlpine was a legal error requiring appeal · Whether leave to appeal should be granted on insurer and expert advice affecting physical or legal impossibility · Whether continuing work at prescribed portions of site would breach GCC 20 · Error of law in failing to resolve conflicting expert views (Mr Mackinley and Mr Pullen) · Whether arbitrator's decision was one no reasonable arbitrator could reach on piling works feasibility · Whether arbitrator erred in holding GCC 13 and 14 preclude applicant from tendering in certain circumstances · Whether arbitrator erred in assessing Mr Mackinley's evidence as supporting respondent · Whether arbitrator erred in construction of Bill Of Quantities clauses requiring under-reaming technique · Leave to appeal against arbitrator's costs order on common fund basis
Outcome: Leave to appeal refused on all grounds; applicant ordered to pay costs.