Lawler, Matusky & Skelly v The Attorney General of Barbados

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Williams, J.
• Judgment Date: 22 August 1983
• Neutral Citation: BB 1983 HC 62
• Docket Number: No. 320 of 1981
• Date: 22 August 1983

High Court. (Civil Jurisdiction)

Williams, J.

No. 320 of 1981

Lawler, Matusky & Skelly

and

The Attorney General of Barbados

Appearances:

Mr. C.A. Phillips, Q.C. and Mrs. M. Boyce of Messrs. Fields & Phillips for the applicants.

Mr. H.deB. Forde, Q.C. and Mr. Carlisle Payne for the respondent.

Arbitration - Powers of arbitrator — Appointment of foreign representative

Attorney-at-law - Statutory interpretation — Legal Profession Act (Barbados)

Williams, J.

1 This is a case stated by an arbitrator pursuant to an order of Douglas, C.J. under section 24(1) of the Arbitration Act, Cap. 110. The decision of the Court is required on the following questions:–

• 1. Whether or not the arbitrator, having regard to the provisions of the Agreement made between the parties on the 8th of September, 1977 and the laws of Barbados (particularly those regulating the legal profession and the practice of law) has and/or had the power in law to determine and/or has correctly or validly determined that the applicants are entitled to be represented at hearings in Barbados by Mr. Jack Kannry, a person not registered under the provisions of the Legal Profession Act.

• 2. Whether or not the arbitrator has the power in law to permit the applicants to be so represented and/or was correct in ruling that the applicants will be so represented provided such representation is conducted in association with an attorney-at-law registered under the provisions of the Legal Profession Act.

2 The Agreement between the parties provided for the claimant applicants, as engineering consultants to the Government of Barbados, to perform certain professional engineering services in. connection with the construction of the Bridgetown Sewerage Project. Article 16 of the Agreement provides –

“16.01 This Agreement shall be governed in all respect by the laws of Barbados.

16.02 All disputes, differences or questions between the Parties to this Agreement with respect to any matter or thing arising out of or relating to the Agreement which are not settled by negotiation or other agreed method of settlement may, after written notice by either party to the Agreement of the other Party, be submitted to arbitration in accordance with the provisions of the Arbitration Act, 1958 ( Act 1958–23) Chapter 110 of Barbados.”

3 It is clear therefore. that from the outset the parties agreed that the law governing the contract would be the law of Barbados and the law governing the arbitration proceedings, the lexi fori, would be the Arbitration Act, Chapter 110, of Barbados.

4 When an arbitral tribunal is ordered to state a question of law arising in the course of the reference in the form of a special case for the decision of the High Court, there is a division of function between the tribunal and the Court. It is for the Court to decide the question of law and it is for the tribunal to make findings on all matters of fact which are relevant to the decision of the question of law: see Donaldson, J. in Rolimpex v. Dossa & Sons Ltd. [1971] 1 L1. L.R. 380 at p. 384.

5 In this case the arbitrator has set out his findings as follows:

• “a. Mr. Kannry is both an engineer and an attorney, licensed in those professions in the State of New York, and has had extensive experience for several years in representing Claimant, in those capacities, in dealings with the Government of Barbados on the matters at issue to be resolved in this Arbitration.

• b. The Government several legal representatives, with whom Mr. Kannry, dealt on contract negotiations, earlier claims resolution and other matters of legal representation for Claimant, did not object, as far as I know, in any manner to such representation, and Claimant extensively relied upon the experience so acquired by Mr. Kannry in that capacity. To deprive Claimant of the right to such continued representation in the Arbitration hearings could be prejudicial to that party.

• c. My experience in international engineering and construction contracts, and my personal involvement in arbitrations to resolve disputes arising therefrom, has been that there exists a well recognised practice of permitting parties in arbitration hearings, as separate and distinct from the litigation process in Court, to be represented by a person of their own choosing, and not necessarily one who is admitted to practice law in the particular jurisdiction where the hearings are to be held.

• d. Inasmuch as the nature of the dispute between the parties is technical, involving engineering and construction matters, Mr. Kannry's background in those areas, and familiarity with the technical facts from several years of experience in this matter, and wholly independent of any legal credentials, justifies his appointment as Claimant representative for the arbitration hearings.

• e. The fact that this Court appointed me as Arbitrator evidenced its recognition of the importance of technical expertise over local legal expertise in this matter. The same standard is proper in connection with the parties representatives.

• f. The Arbitration Act of Barbados, which governs the procedures agreed to by the parties as applicable to the resolution of disputes, is silent on this subject and, therefore, does not either require representation of a party by a Barbados attorney or preclude representation of a party by other than a Barbados attorney.

• g. The provision of the Legal Profession Act, which respondent has cited as the sole basis for objecting to Mr. Kannry as Claimant representative in the Arbitration, is neither incorporated by reference in the Arbitration Act, nor does it specifically refer to arbitration proceedings. Both the distractions made by Mr. Kannry in the papers submitted to me, and not contested by respondent, and the conduct of respondent attorneys and other Government legal representatives during the several years of direct dealing with Mr. Kannry, as Claimant representative, are consistent with the common and usual meaning ascribed to the term “practice of law” in English-speaking countries throughout the world.

• h. Article 16, paragraph 16.01 of the Agreement, provides that “this Agreement shall be governed in all respects by the laws of Barbados.” Inasmuch as this requirement, separate and distinct from the procedural matter of disputes resolution under paragraph 16.02, will likely necessitate consideration of other Barbados laws relating to the rights, duties and obligations of the parties in the performance of the Agreement, I directed that Claimant representative be assisted by a Barbados attorney at all hearings to advise on those points.”

6 These findings disclose the complete reasoning on which the arbitrator proceeded in giving his ruling on the 21st of January, 1982. And I must clarify from the outset how certain aspects of these findings must be approached.

7 First, it is the function of this Court to decide the questions of law raised and the Court is not bound by any conclusion of the arbitrator on what the law is. It matters not that the arbitrator's view is put forward as one of fact. The proper construction of a statute is a question of law and in this case the true meaning and effect of the Arbitration Act and the Legal Profession Act are matters to be decided by this Court and not by the arbitrator: see the speech of Lord Hailsham in Woodhouse Ltd v. Nigeria Produce Ltd. [1972] A.C. 741 at pp. 752 and 753 and that of Viscount Simonds in Tsakiroglou & Co. Ltd. v. Noblee and Thorl [1961] 2 All E.R. 179 at p. 185.

8 Second, with respect to the arbitrator's reference to the existence of a well recognised practice of permitting parties in arbitration hearings to be represented by a person of their own choosing, no such practice can supersede the law of Barbados which governs the arbitration proceedings. In Orion Cia. Espanola de Seguros v. Belfort Maats [1962] 2L1. L.R. 25, Megaw, J., said, after reviewing the judgments of the members of the Court of Appeal in Czarniknow v. Roth, Schmidt & Co. [1922] 2 K.B. 478, (at p. 264) –

“The conclusion which I draw from those judgments is that it is the policy of the law in this country that, in the conduct of arbitrations, arbitrators must in general apply a fixed and recognisable question of law, which primarily and normally would be the law of England and that they cannot be allowed to apply some different criterion such as the view of the individual arbitrator or umpire on abstract justice or equitable principles.”

9 Adapting this approach to the instant case the law of Barbados is the law to be applied and effect can be given to the practice of which the arbitrator speaks only if the law of Barbados permits it. If the Legal Profession Act excludes representation in arbitration hearings in Barbados by a person who is not an attorney-at-law registered thereunder, the international practice must yield to the law.

10 Third, if it is against the law for Mr. Kannry to represent the claimants in arbitration hearings in Barbados, the conduct of the legal representations of the Government in dealing with Mr. Kannry as the claimant's representative cannot preclude the Attorney General from raising the illegality. The arbitrator, like everyone else, would have to obey the law and could not authorise or condone its breach. In Maritime Electric Co. Ltd. v. General Dairies Ltd. [1937] 1 All E.R. 748 P.C. their Lordships pointed out that it was the duty of each party to obey the law and stated that they were unable to see how the Court can admit an estoppel which would have the effect pro tanto and in the particular case of repealing the statute.

11 I turn now to the Arbitration Act. Section 14(1)(a) contains the source of the arbitrator's procedural powers. It enacts –

• “14(1) Unless a contrary intention is expressed therein, every arbitration agreement shall where such a provision is applicable to the reference, be deemed...