Dickson Construction Co. Ltd. v. Attorney General

HCMP002631/1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon. Kaplan J. in Chambers

Date of Hearing: 2 December 1991

Date of handing down Judgment: 12 December 1991

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JUDGMENT

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1. By an Originating Summons dated the 6th September 1991, the Plaintiffs sought the appointment of Dr. John Uff Q.C. (or some other fit and proper person), as an arbitrator under the provision of Section 12 of the Arbitration Ordinance, Cap. 341.

2. The Originating Summons came on for hearing before Master Beeson on the 1st November 1991. She dismissed the Originating Summons but gave no reasons.

3. I pointed out to both parties that by reason of the terms of the Construction List Practice Direction dated 2nd August 1986, all applications under Order 73 of the Rules of Supreme Court come within the class of action assigned to that list. This application to appoint an arbitrator is made under Order 73 of the Rules of Supreme Court. The Construction List Practice Direction states specifically that "... interlocutory applications therein shall be returnable only before the Judge." In so far as the Originating summons can be said not to be interlocutory then it is a fortiori one that should be heard by the Judge in charge of that list.

4. By a contract dated 29th November 1985, Dickson agreed to carry out certain works for Government in relation to an extension of Kai Tak Airport. The Plaintiffs were required by Government to enter into a sub-contract for lift works with Schindler Lifts (Hong Kong) Ltd.

5. Schindler applied for the appointment of Dr. Uff Q.C. as an arbitrator in respect of their dispute with Dickson. Dickson resisted the appointment and the matter came before His Honour Judge Leonard (as he then was) on the 19th June 1991 when he granted the application and appointed Dr. Uff in respect of the Schindler/Dickson claims [1991 M.P. 1088]. I am told .that this dispute involves less than $1M., but raises a point of law dealing with the position of sub-contractors. It was on this basis that a legal arbitrator was chosen and, I assume, appointed.

6. Dickson are in dispute with Government. Whatever may have been in the position at an earlier point of time Mr. O'Sullivan for the Attorney General accepted quite sensibly that a dispute or difference exists as between Dickson and Government and that an arbitrator should be appointed. He resisted the appointment of Dr. Uff and put forward the names of three local arbitrators, two of whom have Quantity Surveying qualifications, and one of whom is a member of the bar. The third person put forward is a very experienced legal arbitrator.

7. It is common ground that Dickson's dispute against Government is not limited to the claim that Government shall indemnify them in respect of Schindler's claim. Other claims have been made. Some have been settled. Nevertheless, Dickson contend that they have a large claim against Govenment and the Schindler claim is but part of that.

8. There is no doubt that these 2 disputes relate to the same works. Mr. K.M. Chong has pointed out the dangers of having different arbitrators with the risk of conflicting decisions.

9. I am quite satisfied that it is more appropriate to appoint Dr. Uff in the present case. Much as I would prefer to appoint a local arbitrator because of the costs implications I feel that to do so would court difficulties in the future. Fortunately there is now in Hong Kong a pool of experienced arbitrators thanks to the excellent training programme arranged by the Hong Kong Branch of The Chartered Institute of Arbitrators in consultation with the U.K. parent body. In most cases it is possible to appoint a local arbitrator who has knowledge of local conditions and procedures.

10. If I were to appoint a different arbitrator, I am sure that I would then be asked to consider consolidating the 2 arbitrations and removing one or other arbitrator under Section 6B of the ordinance. Dr. Uff's arbitration has commenced and I believed directions have been sought and possibly made. Any court would be cautious before removing Dr. Uff under Section 6B(3) because of the delaying effect that might have in relation to that arbitration.

11. It may well be that having appointed Dr. Uff, I will be asked to consider making an order under Section 6B to the effect of these two arbitrations should be heard at the same time to save time and costs. Nothing I say in this judgment is intended to pre-empt that decision because I have not had the advantage of hearing the views of the other party involved, namely Schindler.

12. I am quite satisfied that Dr .Uff will make such orders and give such directions as are necessary to ensure that both these arbitrations are dealt with expeditiously and economically. In so far as Government do not relish the prospect of being involved in Schindler's claim against Dickson (preferring perhaps to rely upon their legal submissions), this is a matter which can be accommodated, if appropriate, by an experienced arbitrator such as Dr. Uff.

13. In my judgment, it must be more economical to have one arbitrator than to have two arbitrators even if no order is made under Section 6B.

14. As I have said Master Beeson dismissed the Originating Summons and awarded costs in favour of the Attorney General. I am allowing an appeal from her decision, although the matter should not have been placed before her in the first place.

15. What then should I do about costs? Both parties should have realised that this matter should have been listed before the construction list judge in accordance with the practice direction. Neither took any steps to have the matter removed from the Master and neither referred her to this direction. In those circumstances, I think that the justice of the case requires that there should be no order as to costs of the hearing before the Master.

16. As to the costs of the appeal, I have made the order for which Mr. Chong contended. Mr. O'Sullivan resisted the appointment of Dr. Uff. He was prepared to agree on one of the three local arbitrators. In my judgment, the costs either have to follow the event, in others words, I should award them to Dickson or they should be in cause. The latter order would achieve nothing as this Originating Summons has now served its purpose. It was suggested to me that I could make an order that the costs of the appeal should be in the arbitration. By that I understood to mean that if, for example, Dickson were to win the arbitration and to be awarded the costs they would include the costs of this appeal. Neither party was in a position to address me on the question of jurisdiction to make such an order, and I would prefer not to consider that point, until I have heard full argument on the matter.

17. In the circumstances, it seems to me that the fair and proper order is that the costs of the Originating Summons which will, of course, include the appeal before me shall be the Plaintiffs. This will be subject to my order that there should be no order for costs in relation of the hearing before Master Beeson.

18. I, therefore, make an order under Section 12 of the Arbitration Ordinance appointing Dr. John Uff as arbitrator. This mean that I allow the appeal and award the costs of the Originating Summons to the Plaintiffs, save that there be no order to costs in relation to the hearing before Master Beeson.

Representation:

Mr. K.M. Chong instructed by Messrs. Charles S.C. Yeung & Co.

Mr. P. O'Sullivan, Senior Crown Counsel, Attorney General's Chambers