REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No: 246 of 2009

Claim No. CV2008-04998

IN THE MATTER OF THE ARBITRATION ACT CHAPTER 5:01

And

IN THE MATTER OF THE DECISION OF DR. ROBERT GAITSKELL Q.C., THE

SOLE ARBITRATOR OF AN ARBITRATION UNDER THE ICC RULES OF

ARBITRATION 1998

BETWEEN

NH INTERNATIONAL (CARIBBEAN) LIMITED

Appellant

AND

NATIONAL INSURANCE PROPERTY DEVELOPMENT COMPANY LIMITED

Respondent

PANEL: A. Mendonça, J.A.

P. Jamadar, J.A.

N. Bereaux, J.A.

APPEARANCES: Mr. Fitzpatrick, S.C, Mrs. L. Lucky-Samaroo and Mr. Mooto

appeared on behalf of the Appellant.

Mr. Newman, S.C. and Mr. R. Ali appeared on behalf of the

Respondent

DATE DELIVERED: December 20th

, 2013

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We agree with the judgment of Mendonca J.A. and have nothing to add.

P. Jamadar,

Justice of Appeal

N. Bereaux

Justice of Appeal

JUDGMENT

Delivered by A. Mendonça, J.A.

1. This appeal is from the decision of Jones, J. whereby she dismissed the Appellant’s claim

seeking to remit for the reconsideration of the Arbitrator the Third Partial Award (the TPA) made

by him for errors on the face of the award.

2. I will briefly outline the relevant factual background outlined at this time and in doing so I

rely on the facts as set out in the parties’ written submissions in respect of which there has been

no dispute. When I come to discuss the specific issues I will however need to explore the factual

background in more detail.

3. On March 6th

, 2003 the Respondent (NIPDEC) as employer entered into a contract with

the Appellant (NHIC) as contractor for the new Scarborough Hospital in Tobago. The conditions

of contract used by the parties were those contained in the standard form of building contract for

the construction works known as the Fidic General Conditions of Contracts for Construction first

edition 1999 (the Conditions).

4. At the commencement of the contract, the contract price was $135,912,829.52 and the

duration of the works was stated to be 730 days, with the original date for completion being

March 17th

, 2005.

5. On August 24th

2004 before the works were completed NHIC issued a request for

arbitration to the International Court of Arbitration of the International Chamber of Commerce

(ICC) pursuant to clause 20.6 of the Conditions in respect of certain disputes that had arisen

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between the parties as to NHIC’s entitlement to additional remuneration for, inter alia, variations

and additional works, delays and an extension of time under the contract. The ICC appointed Dr.

Robert Gaitskell as the sole Arbitrator on October 3rd

, 2004. The terms of reference for the

arbitration were signed on December 1st, 2005 and amended on January 15

th 2007. By the terms

of reference and in accordance with clause 20.6 of the Conditions, the decision of the Arbitrator

is to be final and binding on the parties.

6. On June 23rd

, 2005 NHIC purported to and did reduce its rate of work on the construction

of the Scarborough Hospital. On September 23rd

, 2005 NHIC suspended the works and ultimately

by notice dated November 3rd

, 2006 terminated the contract.

7. During the course of the arbitration several awards have been published. Of them I need

only refer to two for the purposes of this appeal namely, the second partial award and the TPA.

8. The second partial award determined certain liability issues which included a

determination that NHIC was entitled to reduce the rate of work under the contract, subsequently

to suspend the works and finally to terminate the contract. The findings of the Arbitrator are

subject to a separate appeal to this Court and judgment in that appeal is to be delivered

immediately prior to this judgment.

9. The Third Partial Award (TPA) which is dated November 7th

, 2008 is the subject of this

appeal as mentioned earlier. The TPA deals with financial claims made by the parties against

each other flowing from the termination of the contract. In determining the financial claims, the

Arbitrator was assisted by an independent quantity surveyor (the IQS) jointly appointed by the

parties.

10. By the TPA, the Arbitrator awarded NHIC an extension of time of 806 days and the sum

of $133,241,191.92 on its claims and NIPDEC was awarded the sum of $6,761,564.32 on its

counterclaims.

11. By its claim form filed in these proceedings NHIC asked for various issues concerning the

TPA to be remitted to the Arbitrator for reconsideration by him on the grounds that the award

contained errors on its face. Specifically NHIC sought the following orders:

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a) an order pursuant to section 18 of the Arbitration Act Chap.5:01 (the Act) and/or

the inherent jurisdiction of the Court that the TPA be remitted for the

reconsideration of the Arbitrator of NIPDEC’s counterclaims in the arbitration in

accordance with the directions of the Court on the proper construction of clause

2.5 of the Conditions and for such consequential amendments as might be

necessary;

b) an order pursuant to section 18 of the Act and/or the inherent jurisdiction of the

Court that the TPA be remitted for the reconsideration by the Arbitrator of NHIC’s

claim in the arbitration for recovery of overheads as part of its loss of profits on

original works incomplete at the termination of the contract in accordance with the

directions of the Court on the proper construction of clause 16.4(c) of the

Conditions and for such consequential amendments as might be necessary;

c) an order pursuant to section 18 of the Act and/or the inherent jurisdiction of the

Court that the TPA be remitted for the reconsideration by the Arbitrator of

NICH’s claim in the arbitration to be entitled to $4,335,534.60 in respect of

disruption costs in accordance with the directions of the Court on the status and

effect of the Respondent’s admission contained in the addendum to the amended

terms of reference that the Appellant had incurred disruption costs of

4,335,534.60 and for such consequential amendments as might be necessary; and

d) an order pursuant to section 18 of the Act and/or the inherent jurisdiction of the

Court that the TPA be remitted to the Arbitrator for the reconsideration by the

Arbitrator of NIPDEC’s counterclaims 9(A) (defective superstructure walls) and

5 (defective superstructure walls) in the arbitration in accordance with the

directions of the Court as to the admissibility of and/or weight to be given to

certain passages contained in the report of an expert witness (to which detailed

reference will be made below) and for such consequential amendments as might

be necessary.

12. The Judge dismissed NHIC’s claim and NHIC now appeals contending that the Judge

erred in dismissing the claim.

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13. I will refer to each of the above orders sought by NHIC in turn. I will however first refer

to the jurisdiction of the Court to remit an arbitral award.

14 The power to remit the award of an arbitrator for his reconsideration is contained in

section 18 of the Arbitration Act. This provides as follows:

“18(1) In all cases of reference to arbitration the Court may from time to time remit the

matters referred, or any of them, to the reconsideration of the arbitrators or

umpire.

(2) Where an award is remitted, the arbitrators or umpire shall, unless the order

otherwise directs, make their award in three months after the date of the order.”

15 The power to remit although stated in general and unqualified terms in section 18 has

been circumscribed by case law so that the power to remit may be exercised only in certain

circumstances which include:

i) where the award is bad for error appearing on its face;

ii) where there was misconduct by the arbitrator;

iii) where a mistake was admitted by the arbitrator and he requested that the matter be

remitted;

iv) where additional evidence was discovered after the making of the award; and

v) where notwithstanding that the Arbitrator has acted with complete propriety, due

to mishap or misunderstanding, some aspects of the dispute which has been the

subject of the reference have not been considered and adjudicated upon as fully or

in a manner which the parties were entitled to expect and it would be inequitable

to allow any award to take effect without some further consideration by the

Arbitrator. (See King and another v Thomas Mc Kenna Ltd. and another

[1991] 2 Q.B. 480)

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16. It is NHIC’s contention that in respect of each of the orders it sought that the award is bad

for errors on its face.

17. It is well established that an award may be remitted for an error in law appearing on its

face. It should however be noted that where what is alleged is that there is an error on the face of

the award in respect of an issue of law which has been specifically referred to the arbitrator, that

issue may not be remitted and the parties are bound by the arbitrator’s decision (see FR.

Absalom, Ltd. v Great Western (London) Garden Village Society Ltd. [1933] AC 592 at

607). The Court may, therefore, remit an award for the reconsideration of the arbitrator for error

appearing on the face of the award except where the question of law decided by the arbitrator is

one that was specifically referred to him for his decision.

18. What is meant by an error in law on the face of the award was discussed in Champsey

Bhara and Co. v Jivraj Baloo Spinning and Weaving Co. Ltd. [1923] AC 480. In that case

Lord Dunedin speaking for the House of Lords stated (at p. 487-488) that:

“An error in law on the face of the award means, in their Lordships’ view, that you can

find in the award or a document actually incorporated thereto, as for instance a note

appended by the Arbitrator stating the reasons for his judgment, some legal propositions

which is the basis of the award and which we can then say is erroneous. It does not mean

that if in a narrative a reference is made to a contention of one party that opens the door

to seeing first what that contention is, and then going to the contract in which the party’s

rights depend to see if that contention is sound. Here it is impossible to say, from what is

shown on the face of the award, what mistake the Arbitrator made. The only way that the

learned judges have arrived at finding what the mistake was is by saying; “in as much as

the Arbitrator’s awarded so-and-so, and in as much as the letter shows that the buyer

rejected the cotton, the Arbitrators can only have arrived at that result by totally

misinterpreting r. 52. But they were entitled to give their own interpretation to r. 52 or

any other article, and the award will stand unless, on the face of it, they have tied

themselves down to some special legal proposition which then, when examined, appears

to be unsound.”

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19. As regards errors of fact, the Court may only remit for the arbitrator’s reconsideration in

the following three cases:

1. where the arbitrator has stated a case on whether there is any evidence to support his

findings;

2. where there is such an irreconcilable conflict between the arbitrator’s conclusion and

the facts found in the award as to show that he must have misdirected himself when

arriving at the conclusion; and

3. where there is a sufficient conflict between various findings of fact to make it

uncertain what the arbitrator meant. In such an event the Court will remit the award

for clarification.

(See Overseas Buyers Ltd. v Granadex S.A. [1980] 2 Lloyd’s LR 608, 613.

20. It is also relevant to note, as the Judge observed in her judgment, that the approach of the

Court “has always been to support the validity of the award and to make every reasonable

intendment and presumption in its favour” (see Meyer v Leanse [1958] 2 QB 371 at 380)

21. I now consider the first order which NHIC sought in its application before the Judge. This

was to remit the award for reconsideration by the Arbitrator in accordance with the directions of

the Court on the proper construction of clause 2.5 of the Conditions. This aspect of the appeal

concerns therefore the construction of clause 2.5 which is generally speaking a question of law

(see Government of Kelantan v Duff Development Co. Ltd. [1923] AC 395). The clause in its

relevant parts is as follows:

“If the Employer considers himself to be entitled to any payment under any Clause of

these Conditions or otherwise in connection with the Contract,.... the Employer or the

Engineer shall give notice and particulars to the Contractor......

The notice shall be given as soon as practicable after the Employer became aware of the

event or circumstances giving rise to the claim..... The particulars shall specify the Clause

or other basis of the claim and shall include substantiation of the amount...... to which the

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Employer considers himself to be entitled in connection with the Contract. The Engineer

shall then proceed in accordance with Sub-Clause 3.5 [Determination] to agree or

determine (i) the amount (if any) which the Employer is entitled to be paid by the

Contractor....

The amount may be included as a deduction in the Contract Price and Payment

Certificates. The Employer shall only be entitled to set off against or make any deduction

from an amount certified in a Payment Certificate, or to otherwise claim against the

Contractor, in accordance with this Sub-Clause”.

22. In its closing submissions before the Arbitrator, NHIC resisted NIPDEC’s counterclaims

on the ground that the procedure set out in clause 2.5 had not been followed. It was the argument

of NHIC that the clause sets out a strict code for the bringing of any claims by the employer to

the exclusion of its common law rights. Therefore, no claim or set-off could be sustained by

NIPDEC against NHIC. The clause however, it was submitted, did not affect claims against

NHIC where the claim amounted in law to a defence by way of abatement.

23. The Arbitrator did not agree. He ruled that clear words were required to exclude the

common law rights of set off and/or abatement, those rights of set-off and/or abatement should be

taken into account in the final reckoning following termination of the contract and the terms of

Clause 2.5 did not prevent this.

24. The Judge in considering NHIC’s application on this issue was of the opinion that the

construction of the clause amounted to a question of law that had been specifically referred to the

Arbitrator for his determination. In those circumstances the Judge held that it was not open to her

to interfere in the conclusion of the Arbitrator and direct him on the construction of the clause.

The parties, she held, were therefore bound by the Arbitrator’s decision in accordance with the

principles stated earlier in this judgment (see para. 16).

25. NHIC contended the Judge erred in coming to that conclusion. NIPDEC was of a similar

view and did not seek to support the Judge’s conclusion. It accepted that the question of the

construction of Clause 2.5 was not a question that was specifically referred for the determination

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of the Arbitrator. It was common ground, therefore, and I agree, that this aspect of the award may

be remitted for the Arbitrator’s reconsideration if there is an error in law on the face of the award.

26. Mr. Newman for NIPDEC submitted that there is no error in law on the face of the award.

The Arbitrator’s construction of the clause is correct. The clause did not exclude rights of set off

and abatement and NIPDEC was entitled to advance its claims amounting to an abatement or set

off, which the engineer was entitled to take into account in the final reckoning of accounts

between the parties following termination of the contract.

27. The parties were therefore on common ground that the clause did not exclude the

common law right of abatement. The distinction between the rights of abatement and of set off

was explained by Lord Denning in Henriksens Rederi A/S v PHZ Rolimpex [1973] 3 All ER

589, 594-595 (cited in Mellowes Archital Ltd v Bell Products Ltd. 58 Con. L R 22):

“Our law has divided cross-claims (which arise out of the same transaction as the claim)

into two categories. First, when the cross-claim goes directly in diminution or extinction

of the claim, such as cases where goods are sold with a warranty and by reason of the

breach of warranty the goods are worth less than the contract price; or cases where work

and labour expended on a building and, by reason of defects, the work actually done is

worth less than the contract price. In every such case it is plain that the plaintiff, not

having completed the agreed work in accordance with the contract, is not entitled to the

whole of the agreed sum. He ought not, therefore, to recover judgment for that sum but

only for the lesser sum... Secondly, when the cross-claim does not reduce the value of the

goods sold or the work done, but causes other damage. Such as the cases where goods

are delayed in delivery and the buyer has a cross-claim for damages for delay; or where

a contractor who is employed to clean windows negligently breaks the leg of a chair. In

former times such damages could only be recovered in a separate action... and would no

doubt be subject to a time bar..., however, these damages can be set up by way of an

equitable set-off in diminution or extinction of the claim - leaving any over-plus to be the

subject of a counterclaim... It is available whenever the cross-claim arises out of the same

transaction as the claim; or out of a transaction which is closely related to the claim”.

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28. The first scenario referred to above gives rise to a right of abatement, the second to a right

of set off. As Hobhouse, L.J stated in Mellowes Archital Ltd. v Bell Products Ltd, supra (at pp

30 and 32):

“The contrast is between those failures to perform the contract which ‘directly’ reduce

the value of the thing itself as opposed to breaches which have caused the relevant party

loss and give rise to cross-claims which he is allowed to set off.

..................

It is therefore clear that, for a party to be able to rely upon the common law right to abate

the price which he pays for goods supplied or work done, he must be able to assert that

the breach of contract has directly affected and reduced the actual value of the goods or

work –‘the thing itself.’ In other words any loss or damage, if it is to be relied upon by

way of answer to a claim for the price, has to arise from the principle of equitable set-

off”.

29. The issue that arises here is whether clause 2.5 excludes the employer from making

claims against the contractor after termination of the contract which amount to a set-off unless the

employer complies with clause 2.5.

29. In contending that the Arbitrator’s construction of the clause is a correct one, Mr.

Newman argued, inter alia, that parties were free to contract out of the right of set-off but that

clear words were needed to do so. He referred to the case of Gilbert-Ash (Northern) Ltd. v

Modern Engineering (Bristol) Ltd. [1973] 3 All ER 195, 215 where Lord Diplock observed:

“It is, of course open to parties to a contract for sale of goods or for work and labour or

for both to exclude by express agreement a remedy for its breach which would otherwise

arise by operation of law or such remedy may be excluded by usage binding upon the

parties.... But in construing such a contract one starts with the presumption that neither

party intends to abandon any remedies for its breach arising by operation of law, and

clear express words must be used in order to rebut this presumption”.

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Mr. Newman submitted that the words of clause 2.5 were not wide enough to exclude the right of

set-off. He argued that the clause should be read simply to apply to express contractual rights to

set-off or to make deductions against certified amounts. The clear purpose of the clause, it was

submitted, was to prevent the employer from arbitrarily withholding sums certified. It was not

intended to prevent the employer or the engineer from abating the contract price in respect of

non-conforming works or to prevent the employer from recovering the cost of rectifying

defective works.

29. Mr. Fitzpatrick for NHIC on the other hand submitted to the contrary. He argued that in

its wording the clause clearly excluded rights of set-off. He submitted that clearer words could

hardly be required.

30. The relevant portion of the clause for the purposes of this argument is to be found in the

last paragraph of the clause which contains the last two sentences of the clause. The first sentence

provides that “the amount may be included as a deduction in the Contract Price and Payment

Certificates”. Nothing in this sentence touches on the right of set-off. It is in fact a direction to the

Engineer how he may treat with the value of the employer’s claim once it is determined by him.

31. The next sentence is the critical part of the clause to this argument. It provides as follows:

“The employer shall only be entitled to set-off against or make any deduction from an

amount certified in a Payment Certificate, or to otherwise claim against the Contractor,

in accordance with the Sub-Clause”.

The effect of this sentence is that employer is prohibited from doing three things unless done in

accordance with the clause and these are to:

a) set-off any payment he considers himself entitled to against an amount certified in

a payment certificate;

b) make any deduction of any payment he considers himself entitled to from an

amount certified in a Payment Certificate; or

c) otherwise claim against the contractor.

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32. The relevant one is a) and it is clear from the wording of the clause that it prohibits the

employer from setting-off any sum against any amount certified in a payment certificate. It does

not go further however. It does not prevent the employer from exercising his right of set-off in

any other way. It would not, for example, prohibit the employer from setting off claims against

amounts that are not certified. As Mr. Newman correctly pointed out, the amounts claimed by

NHIC in the arbitration are generally not amounts that had been certified in a payment certificate.

NHIC was alleging that the amount certified in the payment certificates did not reflect the true

value of the work it had performed. Indeed NHIC’s claims and what has been awarded by the

Arbitrator far exceeded NIPDEC’s counterclaims. It is clear that clause 2.5 does not exclude the

right of set-off in that situation.

33. So far as c) is concerned, which refers to the employer from otherwise claiming against

the contractor except in accordance with the clause, that does not assist NHIC in this case since

the clause specifically refers to set-off and sets out the limitation on the employer in respect of a

right of set-off.

34. In the circumstances I do not agree that there is any error in law on the face of the award

in respect of this issue. Although the Judge refused the application of NHIC to remit on this issue

for reasons which are not sustainable, there is no need to interfere with the Judge’s order.

35. I turn now to consider the second order sought by NHIC. This relates to the proper

construction of Clause 16.4(c) of the Conditions which is as follows:

“16.4 After a notice of termination under Sub-Clause 16.2 [Termination by

Contractor] has taken effect, the Employer shall promptly;:

. . . . . . .

c) pay to the Contractor the amount of any loss of profit or other loss or

damage sustained by the Contractor as a result of this termination.

36. The dispute between the parties is whether under this clause NHIC is entitled to loss of

profit as well as a contribution to overhead costs which it would have received had the contract

not been terminated or only loss of profit. The parties agreed that original contract price work

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with the value of $56,983,440.27 was still to be completed at the time of termination. NHIC

sought a percentage, (12½%), of that sum as representing overheads and profit. The IQS

determined that NHIC used an average of 5.41 percent in respect of intended contribution

towards overheads and profit. The IQS further attributed part of this, namely 2½%, as intended

contribution to profit (excluding overheads) and applied only that percentage. The IQS was of the

view that NHIC was not entitled to a contribution to overheads.

37. The Arbitrator found that under Clause 16.4(c) NHIC was not entitled to recover any

intended contribution to overheads on termination of the contract. He agreed with the approach of

the IQS in determining the intended contribution to profit. He accordingly awarded NHIC a loss of

profit of 2½% of the value of the contract price work still to be completed.

38. The Arbitrator was of the opinion that as a matter of construction “profit” in the clause did

not include a claim for contribution to overheads. Further he was of the view that such a claim was

also not included in the phrase “other loss or damage sustained” in the clause because when a

contract is terminated overhead costs associated with future works would not be incurred or

sustained

39. The Judge agreed with the Arbitrator. She held, in agreement with the Arbitrator, that

“profit” as used in the clause did not include overheads and that insofar as the phrase “other loss

and damage sustained” was concerned, overhead costs had to be “sustained” and it could not be

said “that in the context of termination of the works that overhead costs attributable to the contract

are a loss actually sustained by the contractor”.

40. Before this Court Mr. Fitzpatrick submitted that a contractor would normally have fixed

overheads which would not be affected by the termination of the contract. His price for an

individual contract would include a contribution to those fixed overheads. If the contract is

terminated he will lose the right to recover this contribution which is a real loss or damage

sustained. NHIC was no exception and so was entitled to recover a contribution to overhead costs.

Having lost that entitlement on termination of the contract NHIC sustained a real loss or damage

within the meaning of clause 16.4(c). Further, and in the alternative, he submitted that in any event

the phrase “loss of profit” in clause 16.4(c) includes the loss of an intended contribution to

overheads and consequently such a loss should be recoverable as loss of profit.

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41. Mr. Newman contended that overheads did not come within the meaning of loss of profit

as that term is used in clause 16.4(c). He however submitted that it was not part of his case to say

that a contractor can never claim any amount of loss caused by overheads which are attributable

to termination of the contract. The contractor however had to prove that loss. NHIC did not do so.

42. The Arbitrator in arriving at the conclusion that a claim for contribution to overheads on

termination of the contract was not included in the term “loss of profit” in 16.4(c) considered that

the draftsman of the Conditions was aware of the term “overhead” and had used both terms

“overhead” and “profit” distinctively. He referred to clause 13.5(b)(ii) of the Conditions where

the words “a sum for overhead charges and profit” appear. By contrast the Arbitrator noted that

the draftsman in 16.4(c) had simply referred to “any loss of profit or other loss or damage” and

had not referred to overheads. The phraseology, he said, was inconsistent with “profit” in 16.4(c)

meaning both profit and overheads. He therefore concluded that the draftsman did not intend that

overheads should be recovered under 16.4(c).

43. I can find no fault in the Arbitrator’s reasoning on the face of the award. The conditions

should be construed as a whole. It is a useful aid to interpretation that a word or phrase used in an

instrument has the same meaning throughout unless the context indicates otherwise. The

Arbitrator applied that aid to interpretation. It is true, as pointed out by NHIC, that 13.5(b)(ii), as

it deals with provisional sums, has a different purpose than 16.4(c). But I do not agree that this

provides a different contextual basis to attribute a different meaning to profit as excluding

overheads. As indicated by the Arbitrator, the different phraseology indicates that the draftsman

had overheads in mind but did not intend that they be included in profit. I therefore agree with the

conclusion that “loss of profit” in 16.4(c)” does not include overheads.

44. The Arbitrator, as mentioned above, also did not think that a claim for overhead costs in

relation to future works should be included in the phrase “other loss or damage”. He came to this

conclusion on the basis that under the clause such loss or damage had to be “sustained” and that

any loss attributable to overheads for future works would no longer be incurred and on the

termination of the contract would therefore not be sustained.

45. I agree that on the wording of 16.4(c) the “loss or damage” as with the “loss of profit” has

to be sustained. But I think that the Arbitrator undoubtedly considered only overheads directly

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associated with the contract, namely job related or site overheads (see Hudson’s Building and

Engineering Contracts (12th

edition) para 6-075). I agree that in such a case where the contract

is terminated those overheads would no longer be incurred or sustained within the meaning of the

clause. That is only logical. The original contract price included a mark-up for job related and site

overheads. As a consequence of the termination of the contract those costs would no longer be

incurred and consequently they ought not to be included in profits lost. But overheads may also

include other overheads associated with the contractors’ organisation as a whole. These would

include for example, centralized offices, yards and depots. These are fixed or head office

overheads and would not vary or be affected by the experience of an individual contract and may

continue to be incurred notwithstanding the termination of an individual contract.

46. In determining the contract price the contractor would usually include a mark-up towards

an appropriate contribution together with that of other projects to such overheads. In principle

therefore in such a case where there is a termination by the contractor before the completion of

the works the contractor would have lost that contribution. This case is no different.

47. In Vitex Manufacturing Corporation Ltd. v Caribtex Corporation 377 F. 2d 795 the

issue arose whether fixed overhead expenses should be considered as part of the loss of profits to

the contractor. The court held that it should be so considered. The Judge (Staley, Chief Judge)

noted that “a number of cases held that since overhead expenses are not affected by the

performance of the particular contract, there should be no need to deduct them in computing lost

profits...; since overhead is fixed and non-performance of the contract produced no overhead cost

savings, no deduction from profits should result”.

48. In the Vitex case overheads were treated as part of the loss of profit. In this case they

cannot be included as “profit” within the meaning of the clause as discussed above, but as the

termination of the contract results in the loss of a contribution to overheads such loss should be

treated as “other loss or damage sustained” within the meaning of clause 16.4(c). In my judgment

therefore the Arbitrator erred when he construed the phrase” “other loss or damage sustained by

the Contractor as a result of this termination” as excluding any claim for a loss of a contribution

to fixed overheads as a result of the termination of the contract.

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49. As I mentioned, Mr. Newman for NIPDEC, accepted that the contractor may claim for

overheads but he said that it is a matter of proof. He submitted that NHIC had failed to prove its

loss. He relied on the case of Norwest Holst Construction Ltd. v Co-operative Wholesale

Society Ltd. [1998] All ER (D)61.

50. In that case the Court had to consider the question, inter alia, whether the arbitrator was

entitled to use a formula to quantify loss and/or expense in relation to overheads. The Judge

(Thonton, J) indicated that there were formulae available for calculating lost represented by loss

of a contribution to overheads. He stated that the principal formulae were Hudson, Emden,

Eichleay. He then referred to certain underlying assumptions which must be proved in evidence

before the formulae may be used. The Judge proceeded to set out the circumstances that must be

present before what he described as the “Emden-style formula” might be used.

51. That formula as it was discussed in the Norwest case, deals specifically with a claim for

overheads where there is delay as opposed to the termination of the contract. Not all the

circumstances set out in the judgment of Thonton, J. (see para 350) seem to be relevant to claims

for overhead costs on termination. But some I would think are. For example it is said that there

must be means for the contractor to deploy its resources elsewhere despite the delay. A relevant

consideration on termination seems to me to be whether the contractor would be able to utilize

the resources elsewhere after termination of the contract. As Mr. Newman indicated in the course

of argument, if on termination of the contract, the contractor was then able to deploy his

organization’s resources to secure a more lucrative contract, which included a contribution to

overheads, the contractor may not be able to substantiate that any loss was suffered as a result of

termination of the contract.

52. I think it is reasonable to say that generally before any formula is applied the

circumstances applicable to that formula must be present. The fact of the matter, however, is that

in this case the IQS found an appropriate method applicable to the circumstances of this case to

determine what percentage of the value of the incomplete work reflected lost profit and what

percentage represented an intended contribution to overheads. The Arbitrator supported that

methodology and but for the construction of the clause it seems would have applied that to the

loss of overheads.

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53. It may be that the formula or methodology adopted by IQS, and which was supported by

the Arbitrator, may have included job related or site overheads and may not have referred only to

fixed overheads. If this is so then the percentage used by the IQS to determine the contribution to

fixed overheads may not be appropriate. The methodology itself may not be appropriate. But that

is a matter for the Arbitrator. I would therefore remit this issue for the reconsideration of the

Arbitrator with the direction that a loss of a contribution to fixed overheads is recoverable under

clause 16.4(c).

54. I turn now to consider the third order which was sought by NHIC before the Judge. This

relates to the claim of NHIC for disruption costs.

55. The position of NHIC is that the Arbitrator had found as a fact that NIPDEC had accepted

that NHIC had incurred disruption costs in the sum of $4,335,534. This acceptance was subject to

defences as raised by NIPDEC on the disruption claim. The Arbitrator found that those defences

failed. Yet the Arbitrator awarded the sum of $1,000.000. NHIC contends that that conclusion is

irreconcilable with the facts as found by the Arbitrator that NIPDEC had accepted that NHIC had

incurred disruption costs in the sum of $4,335,534 subject to its defences, which had failed, and

amounted to an error on the face of the award.

56. The Arbitrator in arriving at the award for disruption costs noted that there were a number

of deficiencies in NHIC’s claim which had been put on a global basis. The deficiencies were

highlighted by the IQS. The Arbitrator however noted that the IQS stated that he felt sure that

having reviewed the volume of changes to the original scope of works and the timing of these

changes that NHIC would have suffered some disruption for which NIPDEC was liable. The

Arbitrator further noted that the IQS observed that there was a dearth of records that supported

any detailed analysis of disruption and further that NHIC had not established a causal link

between any events that occurred on site and a claim with respect to disruption. In those

circumstances the IQS was left with no alternative but to make a reasonable assessment of the

disruption incurred by NHIC for which NIPDEC was responsible. This he did by estimating the

disruption costs within the total claimed by NHIC to be 10%.

57. The Arbitrator then referred to NIPDEC’s contention that the claim by NHIC which had

been put on a global basis should fail in principle. The Arbitrator rejected this. Instead he noted

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that the approach of the English Courts is that “if there is sufficient evidence to make a rational

apportionment of part of the global loss to the causative events for which the defender has been

held responsible” then this loss should be adopted.

58. Using that approach the Arbitrator proceeded to award $1,000,000 which was the figure

certified by NIPDEC’s engineer at the time in the light of his contemporaneous knowledge of site

events. He thought that the more appropriate figure for NHIC’s disruption costs.

59. It is perhaps appropriate at this stage to describe the nature of a global claim which was

the basis on which NHIC’s disruption claim was put before the Arbitrator.

60. In London Underground Ltd. v Citylink Telecommunications Ltd. [2007] EWHC

1749 several passages were cited (at paras 102 and 103) from John Doyle Construction Ltd. v

Laing Management (Scotland) Ltd. [2002] BLR 393 which defined a global claim and

explained the basis of it. These are as follows:

[A global claim is] “a claim in which the individual causal connections between the

events giving rise to the claim and the items of loss making up the claim are not specified

but the totality of the loss and expense is said to be a consequence of the totality of events

giving rise to the claim.

36. The logic of the global claim demands, however, that all the events which

contribute to causing the global loss be events for which the defender is liable. If the

causal events include events for which the defender bears liability, the effect of upholding

the global claim is to impose upon the defender a liability which, in part, is not legally

his. That is unjustified. A global claim, as such, must therefore fail if any material

contribution to the causation of the global loss is made by a factor or factors for which

the defender bears no legal liability.... The point has on occasion been expressed in terms

of a requirement that the pursuer should not himself have been responsible for any factor

contributing materially to the global loss, but it is in my view clearly more accurate to say

that there must be no material causative factor for which the defender is not liable.

37. Advancing a claim for loss and expense in global form is therefore a risky

enterprise. Failure to prove that a particular event for which the defender was liable

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played a part in causing global loss will not have any adverse effect on the claim,

provided the remaining events for which the defender was liable are proved to have

caused the global loss. On the other hand, proof that an event played a material part in

causing a global loss, combined with failure to prove that that event was one for which

the defendant was responsible, will undermine the logic of the global claim. Moreover,

the defender may set out to prove that, in addition to the factors for which he is liable

founded on by the pursuer, a material contribution to the causation of the global loss has

been made by another or other factors for which he has no liability. If he succeeds in

proving that, again the global claim will be undermined.

38. The rigor of that analysis is in my view mitigated by two considerations. The first

of these is that while, in the circumstances outlined, the global claim as such will fail, it

does not follow that no claim will succeed. The fact that the pursuer has been driven (or

chosen) to advance a global claim because of the difficulty of relating each causative

event to an individual sum of loss or expense does not mean that after evidence has been

led it will remain impossible to attribute individual sums of loss or expense to individual

causative events. The point is illustrated in certain of the American cases. The global

claim may fail, but there may be in the evidence a sufficient basis to find causal

connections between individual losses and individual events, or to make a rational

apportionment as part of the global loss to the causative events for which the defender

has been held responsible.”

61. It is apparent, therefore, from the above that although a global claim may fail as a global

claim, it does not follow that no claim will succeed. There may be an evidential basis to find a

causal connection between individual losses and individual events and to make a rational

apportionment as part of the global loss to the causative events for which the defendant is

responsible.

62. This was the approach the Arbitrator adopted and it is one for which there is clear

authority. The Arbitrator although dismissing NIPDEC’s objection that the entire claim should

fail in principle, found that there was a proper basis on which to arrive at an apportionment of

$1,000,000. NHIC seems to have no difficulty with the approach adopted by the Arbitrator

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insofar as he sought to apportion the loss. NHIC however submits that the Arbitrator should not

have arrived at any other apportionment but the sum of $4,335,534, which NIPDEC accepted.

63. For the proposition that NIPDEC accepted that figure as NHIC’s disruption loss, NHIC

relied on a schedule annexed to the TPA. The schedule was produced by the IQS during of the

hearing leading to the TPA. There is set out in the schedule the claims in dispute between the

parties. Against each item there is stated the sum contended for by NIPDEC and the sum

contended for by NHIC. Where the parties were able to agree the sum in respect of any item that

agreement is noted in other columns under the headings “Dispute as seen by the Claimant

[NHIC]” and “Dispute as seen by the Respondent [NIPDEC]”. In respect of the disruption costs

which appears at item 190 of the schedule the sum contended for by NHIC is $46,999,212.57 and

the sum contended for by NIPDEC is $4,335,534.60. The latter was the sum as determined by the

IQS.

64. It is NHIC’s position that the effect of the acceptance of that figure by NIPDEC is to

remove from the Arbitrator’s consideration any deliberation of disruption costs. It relieves NHIC

of the burden to lead evidence to substantiate the amount accepted by NIPDEC or any greater

amount. NHIC was entitled to and did accept that amount as its loss. It was submitted that the

acceptance was equivalent to a pleading containing an admission of fact.

65. Mr. Newman submitted that this issue comes down to the interpretation of the schedule.

The sum was not accepted by NIPDEC without proof of liability. It was accepted by NIPDEC

simply as figures and only on the basis that all its defences failed and that NHIC was able to

prove its global claim in full. Its acceptance did not exclude the possibility for the Arbitrator, to

find that NIPDEC was liable for part but not all of the disruption costs.

66. A party is of course free to admit or concede any part of a claim against him. The Court of

course would generally welcome this and give effect to it since if a party decides to admit a fact

or part of his opponent’s claim it is in the nature of a compromise and the Court welcomes and

encourages compromise. The same is no less true of an arbitration. Where one party intends to

rely on an admission or concession made by the other, it must, however, be clear and

unconditional or if made subject to conditions those conditions must not provide any hurdle to

the other party’s reliance on it.

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67. The Arbitrator referred to the acceptance by NIPDEC of the said sum in two paragraphs

of the award. At 36.1.9 he states:

“36.1.9 The IQS considered NH’s plant and labour records and inferred, in his

expert view, that the disruption properly attributable to causes for which NIPDEC was

responsible amounted to TT$4,335,534.60. Further it noted NIPDEC accepts (subject to

its defences) that NH incurred disruption costs of TT$4,335,534.60 (item 90 (sic)

addendum)”.

And at 36.5(ii) the Arbitrator further states:

“36.5(ii) The IQS has made his own assessment in the greater sum of $4,335,534.60. In

the addendum (signed by both parties in the July 2007 hearing) [the schedule] item 190

shows in the column headed “Sum contended by Respondent” that NIPDEC accepts,

subject to liability (including its ‘global claim’ defence), and simply as a matter of

quantum the figure assessed by the IQS (TT$4,335,534.60)”.

The Arbitrator therefore found as a fact that the acceptance by NIPDEC of the said sum was

conditional or as the Arbitrator put it “subject to its defences” or “subject to liability (including

its global claim defence)”. The other feature of note is that the Arbitrator found that NIPDEC

accepted the figure “simply as a matter of quantum”.

68. The Judge did not refer to the statement relating to NIPDEC’s acceptance of the said sum

appearing at 36.1.9. The Judge however referred to the statement “NIPDEC accepts subject to

liability (including its ‘global claim’ defence) and simply as a matter of quantum the figure

assessed by the IQS (TT$4,335,534.60)” in 36.5(ii) which is quoted above. The Judge expressed

the view that this “concession by NIPDEC” was “merely on a ‘figures’ as figures’ basis which

was a term used elsewhere by the Arbitrator to describe the status of the concession and subject

to the Arbitrator’s findings as to liability and its [NIPDEC’s] general defences.”

69. I do not think that the Arbitrator conveys anything different at 36.1.9 than at 36.5(ii) when

he refers to NIPDEC accepting the sum “subject to its defences” and “subject to liability

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(including its global claim defence)”. They both mean, in my judgment, that NIPDEC’s

acceptance of the figure was subject to its liability for the same.

70. It is apparent from the award and this is common ground between the parties, that

NIPDEC raised two general defences to the disruption claim. One was that NHIC did not comply

with clause 20 of the Conditions and therefore the claim should not be entertained. The other

general defence was that the disruption claim should fail in its entirety since it was presented as a

global claim. NHIC’s contention is that as those defences failed any conditionality attaching to

NIPDEC’s acceptance of the sum was removed and as NIPDEC accepted the sum the Arbitrator

should have given effect to. I do not agree.

71. Although the general defences to the disruption claim failed, the onus fell upon NHIC to

establish the claim as a global claim. NHIC failed to do that but the Arbitrator was of the opinion

that the loss could be determined by a rational apportionment of the global loss to the causative

events for which the defendant was responsible. The question then became what was the

appropriate apportionment?

72. The IQS was faced with a claim by NHIC for disruption caused by NIPDEC of over

$46,000,000. He did not agree with that figure and instead estimated disruption costs in the sum

of $4,335,534.60. This was the figure accepted by NIPDEC. It is however clear from the award

that where there is an agreement as to quantum, the Arbitrator will give effect it. Where there is

no agreement the Arbitrator will take into account the views of the parties and the IQS. This is set

out at para 16.6 of the award which provides as follows:

“Prior to the Second Hearing [which is the hearing that led to the TPA] the Arbitrator by

email to the parties, indicated that since the IQS was independent of the parties, and

appointed by them jointly, although the views expressed by the IQS would be in no way

binding upon the Arbitrator, those views would be available to the Arbitrator to be taken

into account when the Arbitrator made his decisions upon the issues between the parties.

Accordingly, it was incumbent upon both parties if and to the extent that they disagreed

with views expressed by the IQS, to challenge clearly those views. This was repeated by

the Arbitrator at the outset of the hearing:....

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It is relevant to note that the views of the IQS were not binding on the Arbitrator. They are not

made any more binding because they may be endorsed or accepted by one of the parties.

73. By accepting the IQS’s assessment, as the Arbitrator noted, NIPDEC was doing no more

than accepting the figures simply as a matter of quantum or as the Judge put it on a figure as

figures basis. It was for the Arbitrator to determine the figure in the absence of agreement

between the parties. The acceptance of the IQS’s assessment carried with it no liability unless the

Arbitrator so determined. The acceptance of the IQS’s assessment was, therefore, not only

conditional on the general defences of NIPDEC but also on the IQS’s assessment meeting with

the acceptance of the Arbitrator.

74. In the circumstances in my judgment and, in agreement with the Judge, there is no

irreconcilable conflict between the facts as found by the Arbitrator regarding NIPDEC’s

acceptance of the IQS’s assessment in respect of the disruption costs and the award made by the

Arbitrator.

75. This leaves the fourth order sought by the Appellant. This concerns the admissibility of

certain passages contained in the report of an expert witness. The relevant background to this

issue is this. Dr. Roberts, an expert witness for NIPDEC, prepared a number of reports on behalf

of an engineering firm of which he was the Director of Operations. During the hearing that led to

the TPA, NHIC applied to strike out from two of the reports prepared by Dr. Roberts, (dated

April 5th

, 2007 and July 2007) certain passages which relied upon tests conducted by one Mr.

Chamberlain, an engineer in the employ of the engineering firm, and Dr. Roberts’ assistant, when

he, (Dr. Roberts) was not present. Mr. Chamberlain did not give evidence at the arbitration. The

tests conducted by Mr. Chamberlain were to locate metal reinforcement in walls constructed by

the contractor. Dr Roberts utilized the results of these tests in formulating his opinion on whether

the metal reinforcement met specifications. NHIC’s application to strike out the passages was on

the basis that those passages were based on inadmissible hearsay insofar as they relied on

statements made by Mr. Chamberlain who did not give evidence of them.

76. The Arbitrator refused NHIC’s application. The basis of NIPDEC’s opposition to the

application was that the statements were admissible under rule 33.10(1)(e) Civil Proceedings

Rules, 1998 (CPR). This rule provides that an expert’s report must say who carried out any test or

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experiment which the expert used for the report and must give details of the qualifications of the

person who carried out any such test or experiment. The reports by Dr Jacob complied with this.

The Arbitrator, therefore, accepted that “the process of [Dr. Roberts] instructing his assistant,

(Mr. Chamberlain), to undertake testing on his behalf where, Dr. Roberts then used that

information to formulate his own opinions, was a proper procedure so that the evidence in his

report was admissible in the arbitration”.

77. The Judge did not consider whether the statements of Mr. Chamberlain on which Dr.

Roberts relied were admissible under rule 33.10. She, however, was of the view that pursuant to

part 30 of the CPR hearsay evidence can be admitted on the service of a notice in that regard.

While it was not disputed that a notice was not served in the arbitration, the Judge indicated that

rule 30.8 of the CPR gave the Arbitrator the discretion to allow hearsay evidence even in the

absence of a notice. She concluded in those circumstances that the submissions of NHIC failed.

78. Before this Court NIPDEC again relied on rule 33.10 of the CPR. It was submitted that

the report was admissible under that rule. Further it was submitted that section 37(1) of the

Evidence Act gave the Arbitrator the power to admit hearsay evidence.

79. With respect to section 37(1) of the Evidence Act, this section provides as follows:

“37(1) In any civil proceedings a statement made, whether orally or in a document or

otherwise, by any person, whether called as a witness in those proceedings or not, shall,

subject to this section and to Rules of Court, be admissible as evidence with any facts

stated therein of which direct oral evidence by him would be admissible.”

The section refers to the admissibility in civil proceedings of an out of court statement. The

admissibility of the statement is expressed to be subject to the section and to rules of court.

80. The first question that arises is whether the section applies at all to arbitration

proceedings. There is no real issue there because the term “civil proceedings” as used in section

37(1) is defined in section 35(1)(b) of the Evidence Act to include an arbitration or reference

whether underwritten law or not.

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81. What then are the rules of Court to which the section 37(1) is made subject? Here section

35(3) is of relevance. This provides as follows:

35(3) For the purposes of the application of this Part [sections 35-47] in relation to any

such civil proceedings as are mentioned in sub-section (1), any Rules of Court made for

the purposes of this Act under sections 77 and 78 of the Supreme Court of Judicature Act,

shall (except insofar as their operation are excluded by agreement) apply, subject to such

modifications as may be appropriate, in like manner as they apply in relation to civil

proceedings in the High Court of Justice.”

82. The rules of Court, therefore, that are applicable under section 35(3) to civil proceedings,

which for the purposes of section 37(1) includes an arbitration, are those rules made for the

purposes of the Evidence Act under sections 77 and 78 of the Supreme Court of Judicature Act.

Those rules are contained in part 30 of the CPR. But for section 35(3) which applies those rules

to arbitration proceedings they would not apply to such proceedings. Section 37(1) therefore

means that out of court statements may be admissible in arbitration proceedings subject however

to the Evidence Act and part 30 of the CPR. It is clear from part 30 that where evidence is sought

to be admitted under section 37 of the Evidence Act that a notice referred to in part 30 as a

“hearsay notice”, must be served subject however, as the Judge pointed out, to the Court’s,

discretion or in the case of an arbitration, the arbitrator’s discretion, to admit the evidence without

service of a notice. I therefore do not accept that section 37(1) automatically allows for the

admissibility of hearsay evidence in arbitration proceedings. However under part 30 of the CPR it

is admissible if a hearsay notice is served or in the absence of such notice, on the discretion of the

Arbitrator.

83. Rule 33.10, therefore, does not advance NIPDEC’s case. The rules that are applicable to

an arbitration, as I have indicated, are those which have been made for the purposes of the

Evidence Act under the Supreme Court of Judicature Act. Those rules are in part 30 and not part

33 of the CPR, which does not apply to arbitration proceedings.

84. In any event part 33 does not apply to the reception of hearsay evidence. Part 33 deals

with experts and assessors and 33.10 provides what an expert report must contain. The report of

an expert often contains his opinion on a statement of facts. Nothing in part 33 admits the

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statement of facts as evidence of the facts stated merely because they are contained in the

expert’s report. It would be remarkable, indeed, if the facts as contained in an expert’s report are

admissible as evidence of those facts purely on the basis that they are contained in the expert’s

report. As was pointed out by Kerr L.J in Abadom 76 Cr. APPR, 48, 52:

“....where an expert relies on the existence or non-existence of some fact on which he is

asked to express his opinion that fact must be proved by admissible evidence.”

85. The position is I think correctly stated in Civil Appeal 55 of 2003 Sookdeo Ramsaran

and others v Lorris Sandy and another. In this case the issue arose whether the Court should

have accepted the evidence of an expert witness, namely Mr. Libert, a valuer. Nelson, J.A., with

whom the other Judges of the Court agreed, stated:

“33... the law is clear that before a court can assess the value of an opinion it must know

the facts upon which it is based.... If an expert opinion is based on hearsay it must be

verified by admissible evidence...

34. In other words the experts must himself ascertain the primary facts, or if he

ascertains them from a second person, that person and no other must give direct evidence

of what primary facts he supplied to the expert. Theresa Rampersad, on whose

instructions Mr. Libert’s report is based, never gave evidence as to what primary facts

she submitted to Mr. Libert...

35. On this basis alone the evidence of Mr. Libert should not have been admitted since

Mrs. Rampersad had not given evidence of her instructions to Mr. Libert......

39. For these reasons an appellate court with the benefit of hindsight is entitled to

treat the evidence of Mr. Libert as inadmissible.”

86. Similarly here Dr. Roberts relied on primary facts supplied to him by Mr. Chamberlain.

As I mentioned these were the results of the tests conducted by Mr. Chamberlain to detect the

presence of metal reinforcement in walls constructed by the contractor and in essence were the

raw data to which Dr. Roberts referred and commented upon in formulating his opinion. Insofar

as the statements of Mr. Chamberlain were not given in evidence they constitute inadmissible

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hearsay and as in the Ramsaran case those passages of Dr. Roberts’ report which rely on such

hearsay evidence should not be treated as admissible.

87. Mr. Newman for NIPDEC submitted that the evidence of primary facts in the Ramsaran

case was not evidence of a person who was qualified, such as Mr. Chamberlain in this case, but

the evidence was rather the evidence of a lay person. It was submitted that the Ramsaran case

would not apply in those circumstances. In other words it was submitted that Ramsaran will not

apply if the expert ascertains the primary facts from another expert. I however do not agree. I see

no justification to treat the evidence of an expert any differently from the evidence of a lay person

on this issue. In my judgment the law is correctly stated by Nelson, J.A, in Ramsaran and is in

any event binding on this Court.

88. Mr. Newman further submitted that remitting the matter to the Arbitrator on this point

would serve no useful purpose because even if the Arbitrator was wrong he had the discretion

under rule 30.8 of the CPR to allow the evidence without calling Mr. Chamberlain as the Judge

held. I however agree with NHIC that the Arbitrator did not appear to exercise his discretion

when he admitted the evidence but thought it had to be admitted once it was rule 33.10

compliant. There is no basis for taking the view that if he knew that such evidence was

inadmissible he would nevertheless have concluded that they were grounds for exercising his

discretion to admit the evidence. This remains a matter for the Arbitrator’s determination.

89. In the circumstances those passages of the reports of Dr. Roberts which rely upon the

findings or tests of Mr. Chamberlain are not admissible and are not to be relied on by the

Arbitrator and taken into account when considering NIPDEC’s counterclaims identified at 9(A)

(defective superstructure walls) and 5 (defective substructure walls) unless in the exercise of his

discretion under rule 30.8 of the CPR he considers it appropriate to admit the evidence of Mr.

Chamberlain.

90. In view of the above therefore, my conclusion on this appeal is that I would allow the

appeal in part and remit the TPA to the Arbitrator for his reconsideration and the making of such

consequential amendments as might be necessary in the light of the determination that i) a

contribution to fixed overheads is recoverable under clause 16.4(c) of the Conditions; and ii)

those passages of the reports of Dr. Roberts dated April 5th

2007 and July 2007 insofar as they

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rely on the statements of Mr. Chamberlain are inadmissible and are not to be taken into account

by the Arbitrator when considering NIPDEC’s counterclaims unless in the discretion of the

Arbitrator he admits the statements of Mr. Chamberlain. As NHIC has succeeded on two issues

but lost on two others, it would be appropriate that each party should bear its own costs and I

would therefore make no order as to costs on the appeal.

91. However it is not appropriate that I make the order above mentioned. The TPA, which is

the subject of this appeal, as I mentioned earlier, deals with the financial claims made by the

parties against each other flowing from the termination of the contract. The Arbitrator found, as

published in the second partial award, that NHIC was entitled to reduce the rate of work under

the contract, subsequently to suspend the works and finally to terminate the contract. NIPDEC’s

appeal in relation to the second partial award, in a judgment delivered immediately prior to this

one, has succeeded and this Court has remitted the matter for the reconsideration of the

Arbitrator. The consequence of that is that the Arbitrator’s determination of the financial claims

of the parties, which is the subject of the TPA, will be significantly impacted. It seems that in

those circumstances and on that basis, the TPA should also be remitted for the Arbitrator’s

reconsideration in the light of the Court’s decision in the appeal by NIPDEC in relation to the

second partial award.

92. We will therefore remit the TPA in the light of this Court’s decision in the appeal from

the second partial award. We however thought it appropriate to set out our conclusions on the

arguments on this appeal in the event that the proceedings in relation to the second partial award

go further and it is determined that we have erred in our decision.

Allan Mendonça

Justice of Appeal

REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal...

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