Rose Grogan successfully represented the Claimant in an application under s.45 Arbitration Act 1996 to have a preliminary issue of law arising out of an arbitration determined by the Court. Rose is currently instructed in a multi-million pound construction arbitration for an employer, who applied under s.45 to have a preliminary issue of law determined by the Court. The application concerned a Maximum Price Target Cost (MPTC) Contract which included a pain/gain share up to a maximum price cap beyond which the employer would not be liable to pay the contractor for any cost overrun. The contractor argued that as a matter of construction of the contract, variations could only be agreed before practical completion and if any one variation was not agreed then the MTPC mechanism in the contract became inoperable and the contractor was entitled to its actual costs plus profit. Coulson J rejected this argument and resolved the preliminary issues in favour of the employer.
The judgment, can be read here and is a rare example of applications under s.45 Arbitration Act 1996.