Validity of Arbitration Notice – Abandoned Claims
Indescon Ltd v Ogden (QBD, 20 August
2004)
Indescon applied to the court for a declaration as to the
validity of an arbitration notice given 10 years prior to the
appointment of an arbitrator.
Indescon and Ogden had contracted under a JCT With
Contractor’s Design (1981) for Indescon to build an
office block for Ogden.
Disputes arose under the contract and Indescon referred
them to arbitration by a notice in 1992. However, in
1999, Indescon had still not appointed an arbitrator. In
2000, Indescon served a second notice, which was
stated to be without prejudice to the first notice. The
second notice set out different disputes to those set out
in the first notice, but did refer to the first notice. In 2002, an arbitrator was appointed. Ogden disputed the
validity of the arbitrator’s appointment and also his
jurisdiction.
The issue therefore was whether or not the first notice
was valid.
The court granted the application. The passing of time
did not render the first notice in 1992 invalid. There was
nothing in the contract to say that the parties should
proceed without delay in appointing an arbitrator, and
there was no basis for implying such a term. Therefore,
Indescon had not abandoned its first notice, and was
entitled to proceed, having agreed an arbitrator with
Ogden or applying unilaterally for the appointment of an
arbitrator.
Herbert Smith Construction Update
January 2005
