Page1

A Monk & Co Ltd v Devon CC

Court of Appeal (Civil Division)
01 January 1979

Case Analysis

Where Reported 10 B.L.R. 9

Case Digest Subject: Arbitration

Keywords: Arbitration; Case stated; Parties; Procedure
Summary: Building; tripartite arbitration; practice
Abstract: In 1967 the appellant CC engaged the respondent
building contractors for the construction of that part of the M5
motorway known as the Cullompton By-pass. The respondents
sub-contracted the work of site clearance and earth removal to a
firm known as Richards and Wallington. Measurement of this work
was agreed but its valuation was disputed both between the
respondents and Richards and Wallington under the sub-contract,
and between the parties to the instant case under the main contract.
Both disputes were referred to a tripartite arbitration. Upon the
arbitrators' direction there were pleadings similar to those in a High
Court action where there are third party proceedings, the
respondents pleading a defence to the claim of Richards and
Wallington and also claiming against the appellants as "third
parties." Just before the arbitration was to commence the
respondents and Richards and Wallington agreed to settlement
upon terms, inter alia, that the latter were to undertake the conduct
and have control of the respondents proceedings against the
appellants. The appellants contended that the respondents were
tied to the denials that they had already made of any liability to
Richards and Wallington and could not drop them in order to enable
the latter to prove their own claim in the respondents' name in the
guise of it being the respondents' claim against the appellants under
the main contract. The arbitrator stated a special case on the
question of law "whether or not in the circumstances now pertaining
(the respondents) are (a) bound by the matters pleaded by them in
defence to Richard and Wallington's claim and/or (b) precluded from
leading evidence or making submissions in the arbitration against
(the appellants) which seek to establish that these matters of
defence are wrong in fact or in law".
Held, that the respondents were not bound as the appellants
contended. Amendments ought to be allowed to give effect to the
realities of the situation and to permit the respective rights of the
parties to be determined (Stott v West Yorkshire Car Co [1971] 2
Q.B. 651 applied).

Significant Cases Cited Stott v West Yorkshire Car Co

[1971] 2 Q.B. 651; [1971] 3 W.L.R. 282; [1971] 3 All E.R. 534;
(1971) 115 S.J. 568; CA (Civ Div)

All Cases Cited Stott v West Yorkshire Car Co

[1971] 2 Q.B. 651; [1971] 3 W.L.R. 282; [1971] 3 All E.R. 534;
 Page2

(1971) 115 S.J. 568; CA (Civ Div)

Books Hudson's Building and Engineering Contracts 12th Ed.

Chapter: Chapter 9 - Assignments, Sub-contracts and Trade
Contracts
Documents: Sub-section (2) - Employer and Sub-Contractor

© 2013 Sweet & Maxwell