The Claimant, Atkins Ltd (“Atkins”), seeks to challenge pursuant to Section 68 of the Arbitration Act 1996 an arbitrator’s award on the grounds that there was a "serious irregularity", said to be a failure on the part of the arbitrator to determine the or an issue put to him. Alternatively, Atkins seeks permission to appeal from that award.

Much of what follows is taken from the uncontroversial parts of the arbitrator’s award. The Secretary of State for Transport (“the Authority”) and Atkins entered into what was called the “Area 6 MAC” Contract on 26 February 2008 (“the Contract”), by which Atkins was appointed as managing agent and contractor for Area 6 of the highways network for a contract period of 5 years, subject to extension for a further 2 years. Area 6 comprised trunk roads in East Anglia. Pursuant to the currently continuing Contract, Atkins is obliged to maintain the roads in Area 6. The work consists primarily of two functions, namely routine and cyclic maintenance and winter maintenance including remedying of minor defects in the roads and management of more substantial works, being the replacement or renewal of network assets, referred to as “schemes” or “renewal schemes”. Maintenance is carried out by Atkins either through directly employed or sub-contracted labour. Schemes may be carried out by Atkins up to a certain value, over which they are carried out by others under the management of Atkins. For maintenance work, Atkins are to be paid a Lump Sum over the period of the contract, which is payable in tendered monthly tranches with additional payment for mobilisation and demobilisation. Maintenance includes an obligation to remedy defects which appear in the road surface, including potholes. The lump sum payment thus includes work required to remedy any defects, including potholes.

The Contract made provision by Clause 90.1 for disputes initially to be referred to adjudication but that, if a party was dissatisfied with the adjudicator’s decision, it could refer the dispute to arbitration. The agreed arbitration procedure was the Institution of Civil Engineers ("ICE") Arbitration Procedure (1997).

A dispute arose between the parties relating to the circumstances in and the extent to which the costs of and occasioned by repairing potholes on the trunk roads in Area 6 should be paid for. Atkins claimed that the prevalence of potholes on the network was significantly greater than it anticipated and that it was accordingly entitled to additional payment pursuant to the compensation event provisions under clause 60 of the Contract, either under clause 60.1(11) (in relation to defects) or clause 60.1(22) (in relation to a breach of an implied term of the Contract). The Authority disputed Atkins’ entitlement to any compensation event. On 3 February 2012, Atkins referred the dispute to an Adjudicator pursuant to Clause 9 of the Conditions; Mr. Andrew Bartlett QC, well known and respected in construction law circles (and elsewhere), was appointed as the Adjudicator. The parties agreed that the Adjudicator should determine the issue of principle as to whether, assuming the material facts were established, there was a compensation event.

Atkins put forward essentially three bases of claim, only one of which was pursued to arbitration. That was referred to as the “Secondary Case” which was, broadly, that potholes occurring after the Contract Date are defects within Clause 60.1(11) where they exceed in volume the number of potholes that it would have been reasonable for an experienced contractor or consultant to have allowed for. As the hearing involved effectively preliminary issues, no "number" of reasonably allowable potholes was identified. The Adjudicator in his decision of 9 March 2012 rejected the two other bases of claim but accepted the Secondary Case.

By Notice to Refer dated 4 April 2012 the Authority gave notice under clause 93.2 of the Contract disputing the Adjudicator’s Decision accepting Akins’ Secondary Case and referring the dispute to arbitration. Professor John Uff CBE, QC, also a well known and respected construction law practitioner and arbitrator, was appointed as arbitrator by agreement between the parties.

Essentially, Professor Uff reached a decision the other way in finding as he did in Paragraph 8.1 (ii) of his Interim Award issued on 22 November 2012 that "an excess volume of potholes beyond what it was reasonable to allow in the Contract is not capable of constituting "a defect in the physical condition of the area network" under Clause 60.1 (11) of the Contract”.

Atkins is unhappy with the outcome of the arbitration and complains that the arbitrator did not effectively or even at all address a key issue upon which it relied. It argues in any event that the arbitrator either came to an obviously wrong decision or a decision that was in the event wrong and that permission to appeal should be granted and the appeal allowed.

To understand the contentions of both parties, it will be helpful if I set out what the Contract provided. The Contract contained what are well-known within construction circles as the NEC3 Conditions, albeit somewhat modified. These Conditions are used throughout the construction and engineering industries and are highly regarded in the sense that they are perceived by many as providing material support to assist the parties in avoiding disputes and ultimately in resolving any disputes which do arise. There are some siren or other voices which criticise these Conditions for some loose language, which is mostly in the present tense, which can give rise to confusion as to whether and to what extent actual obligations and liabilities actually arise. Very few cases involving material disputes as to the interpretation of the NEC3 Conditions have made their way through to reported court decisions. The Contract incorporated "Contract Data" as well as various other documents. Atkins is referred to as the "Provider" whilst the "Service Manager" was the Authority’s representative.

By Clause 20.1, the Provider “provides the Services in accordance with the Service Information”. The Service Information sets out general obligations of the Provider including the obligation to:

Represents a deterioration from the normal condition,

Prevents an item from acting in the intended manner,

Is damaged,

Is likely to increase the rate of deterioration of another item, or

Causes an unintended as it or nuisance…

Injury to any party using or repairing the Network

Significant disruption to the normal flow of traffic through the Network

Structural deterioration of part of the Work…

Clause 11 contains definitions including the following:

for Lump Sum Duties

the total of the monthly lump sum prices stated in section A of the Pricing Schedule for the period since the access date, including any notified extension to the contract period

a proportion of the Lump Sum Price for mobilisation stated in Section A of the Pricing Schedule which is the proportion of the Mobilisation Period which has elapsed

The Lump Sum Price for demobilisation stated in Section A of the Pricing Schedule on completion of the demobilisation duties stated in the Service Information

for the remainder of the Services, the total Defined Cost of the Services which have been carried out by the Provider, plus the resulting Fee.’

Clauses 60 to 65, about which much of the argument revolves, legislate for what are called "compensation events", which, unsurprisingly, are events which entitle the Provider to compensation over and above what the Contract otherwise allows for:

is not revealed by the Network Information or by any other publicly available information referred to in the Network Information,

was not evident from a visual inspection or routine survey of the Area Network at the Contract Date,

an experienced contractor or consultant acting with reasonable diligence could not reasonably have discovered prior to the Contract Date and

an experienced contractor or consultant would have judged at the Contract Date to have such a small chance of being present that it would have been unreasonable for him to have allowed for it.

the Provider believes that the event is a compensation event and

the Service Manager has not notified the event to the Provider.

arises from the fault of the Provider.

has not happened and is not expected to happen.

was something of which the Provider was or ought to have been aware at the time when the original prices for the work affected by the compensation event were assessed.

has no effect upon defined cost or

is not one of the compensation events stated in this contract.

The adjudication process proceeded promptly with Mr Bartlett producing his decision on 9 March 2012 having received written submissions and after an oral hearing. In his decision he records materially in Paragraph 5 that the relief claimed by Atkins was,:

The Adjudicator dealt with those parts of Atkins’ case which are no longer pursued. Material parts of the Adjudicator’s decision on the Secondary Case are as follows:

Essentially, the remaining area of argument referred to arbitration by the Authority related to the Secondary Case. That boiled down in reality to arguments as to whether Atkins was entitled in principle to recover for each and every pothole which it had to deal with over and above the number which an experienced contractor or consultant should reasonably have allowed for. Atkins pursued that argument and it was challenged in effect on the basis that the number of potholes which could reasonably have been foreseen or allowed for was immaterial and an excess over that number did not in itself give rise to a compensation event.

In the context, I turned to what the experienced arbitrator said in his interim award:

The reference to “being present” in the fourth bullet point of clause 60.1(11) is a reference to a defect being present at any time during the contract period.

On 19 December 2012, Atkins’ solicitors wrote to the arbitrator that there had or may have been a "serious irregularity" within the meaning of Section 68 of the Arbitration Act 1996 and asked him to accept the letter as Atkins’ "objection for the purposes of section 73(1)" of that Act. The complaint was that the arbitrator had not decided the issue of whether each pothole over and above the number which should have been allowed for by Atkins was a compensation event. The arbitrator apparently did not respond to this letter but did acknowledge receipt of the Claim.

The Claim was issued on the same day, 19 December 2012, the essential complaint being that the arbitrator had failed to determine the claim as formulated by Atkins, alternatively seeking permission to appeal. The Claim was supported by a witness statement of Mr Speed, Atkins’ solicitor, which explained the background to the claim but also provided information suggesting that the case was one of general public importance, based as it was upon the NEC conditions and because the particular form of contract was used by the Highways Agencies for other road maintenance contract.

The Court issued an order on the 21 December 2012 giving directions for the hearing, it being understood that the hearing would deal not only with the serious irregularity issue but also with permission to appeal. It was understood by both parties that, if permission to appeal was to be given, the hearing would also encompass the substantive arguments.

The Authority submitted two witness statements from Mr Stocker of the Highways Agency and Ms Da Costa of the Treasury Solicitor. These provided some evidence of what Counsel had identified as the "kernel" of the dispute being the "volume point". Ms Da Costa accepted that some of the other maintenance contracts were on the same contract terms but said that currently the Highway Agency "is not in a formal dispute with any other contractor in the remaining 11 areas on this particular issue".

I was assisted by lucid and helpful written and oral presentations by both Counsel in the case.

Relevant parts of the Arbitration Act 1996 are:

For the purposes of Sections 57 and 70, one needs to assess whether the arbitration regime, including any agreed rules or procedures, actually incorporates any arbitral process of appeal or review. Section 57 of the Act, which will or may be part of the arbitral process, allows for correcting an award for “any clerical mistake or error arising from an accidental slip or omission” or clarifying or removing any “ambiguity in the award”. An additional award may be made in respect of any claim presented to the tribunal but not dealt with in the award. The use of the word "claim" in this context is to be compared with the word "issue” in Section 68(2)(d). "Issue" is or at least may be a narrower word than "claim": a claim may give rise to a number of issues albeit that a whole claim may be an issue. This was a distinction highlighted by Mr Justice Cooke in Torch Offshore LLC v Cable Shipping Inc [2004] 2 LL Rep 446.

"Serious irregularity" within the meaning of Section 68 does not mean in itself an error of fact or law on the part of the arbitrator, perhaps on the basis that "to err is human". It is important that the parties do not consciously or sub-consciously dress up challenges to the factual findings or legal reasoning or conclusions of an arbitrator as "serious irregularity". Whilst such errors may well be present when there are other genuine serious irregularities subject to the Court’s intervention under Section 68, that is or may be coincidental. In the Petro Ranger [2001] 2 LL Rep 348, Mr Justice Cresswell highlighted parts of the Report on the Arbitration Bill by the Departmental Advisory Committee on Arbitration chaired by Lord Saville which highlighted various relevant points:

It is unnecessary to consider the meaning and impact of Section 69 which has been addressed by previous court decisions, such as Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] EWHC 426 (TCC) and HMV UK v Propinvest Friar Limited Partnership [2011] EWCA Civ 1708.

As Atkins’ case is intimately tied up with what the Contract actually means in the context of the number of potholes exceeding what might reasonably have been allowed for by Atkins, it will be more helpful if I analyse what the Contract does mean. Both parties before me rightly accepted that Clause 60.1(11) in referring to "a defect in the physical condition of the Area Network" is referring amongst other things to a pothole, however caused. This is obviously right because elsewhere in the contract documentation (and in particular in the Routine and Winter Service Code quoted above) potholes are referred to as defects. It therefore follows that potholes which are encountered can be (or give rise to) a compensation event. The term "defect” is defined very broadly and, whilst the list in Annex 2.1.1 is non-exhaustive, the 20 examples would seem to cover almost every conceivable defect which one might think about.

In Clause 60.1(11), one needs to have regard to the language which the parties have used or adopted. The first element is the encountering of "a defect in the physical condition of the Area Network”. There is a non-exhaustive list of defects and so it must be the case that any defect in the physical condition, whether spelt out as a type of defect in the Contract or not, is the subject matter of the sub-clause. There may well be importance in the use of the singular words "a defect"; the parties could have used the plural "defects" which might have assisted Atkins in its arguments. The singular noun is comprehensible in the light of the four bullet point requirements which must be fulfilled before the defect in question becomes or can be classified as a compensation event; in particular the fourth requirement talks about the contractor/consultant not allowing "for it", the "it" being the defect being considered.

In logic and as a matter of experience, potholes or potholing in roads may be caused by any number of causes from wear and tear, fundamental design, material and construction deficiencies, abuse by road users or others, calamitous events and possibly many more. I gave to Counsel several examples in the course of argument. The first was an accident involving army ordnance exploding, causing damage to the road which leads to potholing. The second was an inherent deficiency in the materials used as base or sub-base course material which over the years deteriorates leading to uneven settlement and potholing. Whatever the cause, the potholes need to be repaired because they are defects within the defect definition in the Routine and Winter Service Code which need to be addressed, often because they would otherwise cause a hazard or nuisance to road users. Given the wide if not infinite nature and causes of potholing, one can then consider the application of the four requirements in Clause 60.1(11). Thus, there might have been comment in the Network Information that a particular trunk road within the area had been designed and built to standards, no longer considered acceptable, using materials which were known to deteriorate over a given period of years; a pothole which is attributable to such deterioration may well therefore fail to satisfy the first bullet point requirement. Similarly, a visual inspection or routine survey at the Contract Date might have revealed a major concentration of potholes in a particularly low-lying area of East Anglia criss-crossed by rivers, streams and drainage ditches; such potholing, whatever the causes, would fail to satisfy the second requirement. Even if not obvious from the Network Information or from a visual inspection or routine survey, an inherent design or construction defect in roads of the type covered within the Contract area which has received substantial publicity, for instance in papers in the New Civil Engineer magazine, might not overcome the third requirement. However, potholing after the Contract Date caused by an unknown and unpublicised type of design or construction defect might well satisfy the third requirement.

It is in the fourth requirement in Clause 60.1(11) that Atkins, to a substantial extent, attaches importance in its contentions about numbers of potholes:

an experienced contractor or consultant would have judged at the Contract Date to have such a small chance of being present that it would have been unreasonable for him to have allowed for it."

One therefore needs to ask whether as a matter of an overall businesslike or commercial interpretation this bullet point requirement must be read as meaning in effect that, where the number of potholes (in this instance) has exceeded the number which might be determined as being a maximum that an experienced contractor/consultant might reasonably have allowed for in its pricing, each and every pothole encountered above that number is a defect which such a contractor/consultant would not reasonably have allowed for.

This of course all presupposes that a dispute resolution tribunal can actually determine the number of potholes either on all roads within the Contract area or on individual roads all parts of roads or possibly seasonally which an experienced contractor/consultant would have judged in February 2008 to have had such a small chance of being present that it would have been unreasonable to have allowed for any number of potholes in excess of that number. There are some very real practical difficulties. An experienced contractor/consultant might have reasonably allowed for there being 1000 potholes on the Colchester to Harwich section of the A12 and 500 on the Great Yarmouth to Lowestoft section of the A47. There could then be permutations on what actually happens with 1200 potholes on the A12 and 700 on the A47 having to be remedied over the life of the Contract: on Atkins’ case the extra over of 200 and 200 would be payable. But what happens if 500 potholes only are encountered on the A47? Does one aggregate all the totals on the scores of different sections of road and compare the aggregate total with what is actually encountered or does one look at only those sections of road where the local total is more than what should reasonably have been allowed for? The adjudicator talked of looking at this on a month by month or year by year basis but that again that can produce immensely complex issues. Does one take each of thousands of chainages of roads and analyse for each chainage on a month by month or year by year basis what could reasonably have been allowed for? Although the arbitrator at Paragraph 7.10 suggested that "engineers on both sides would readily contrive some system to bring order and might well agree on a numerical basis from which to assess the "excess" number…of potholes over a given period or area", there is at least potentially an extremely difficult and probably artificial exercise to determine issues such as this.

I do not consider that there is any commercial logic or common sense in defining Clause 60.1(11) as enabling the volume of individual defects to be part of the equation. The concentration in the sub-clause is on "a defect in the physical condition" (a pothole in this instance) which would objectively be judged initially as having had such a small chance of being present that it would not reasonably have been allowed for within the pricing. There is of course something on which this fourth requirement can bite which is the cause and origin of the pothole in question. If for example the potholing is caused by exploding army ordnance, by a wholly unforeseeable deterioration of the carriageway attributable to design, materials selection or construction defects in the original road construction taken over by Atkins, by deterioration in the carriageway caused by unforeseeably bad or unseasonable weather which the carriageway was never designed or expected to cope with or by the failure of statutory undertakers’ piping under or near the roads, it may well be that, subject to the other three requirements being met and to the evidence, the fourth requirement may also be met. It would then follow that the foreseeable number of potholes overall or on different sections of the roads in question is immaterial and the fact that substantially less potholes are encountered than reasonably envisaged at February 2008 would not prevent recovery for dealing with potholes caused by factors which are not excluded by the four bullet point requirements. It is noteworthy that the Adjudicator noted that no practical example of defects qualifying under Clause 60.1(11) was given to him by the Authority in argument; that is unfortunate because there are ready examples such as thoseset out above.

Commercially, one needs to remember that the Contract was, broadly, a lump sum as opposed to a re-measurement contract. The parties collectively take a risk that the defects to be addressed will be more or less in number and in terms of expense than the contract lump sums may allow for. Thus, the Authority may end up paying much more than it might have done through the lump sum if the defects turn out to be a lot less than the lump sum may have allowed for; conversely, Atkins would then make correspondingly additional and non-anticipated extra profit. The Authority may end up paying less if the defects to be addressed turn out to be more in number with Atkins making less profit or incurring more cost than it had anticipated. There is nothing commercially unfair or indeed unusual in the parties taking these sorts of risk. Mr Mort says that this point is effectively circular because the parties agreed lump sums, subject to the compensation event provisions. With respect to him however, one can not seek to interpret the contract on a commercial basis without looking at the commercial reality overall; put another way in the context of this case, one can not support a broad inferential interpretation of Clause 60.1(11) by generally praying in aid commercial reality when the commercial commonsense supports or at least does not undermine each party taking commercial risks. On Atkins’ side, there is no commercial risk and indeed there is only what some will call a "win/win" situation for Atkins in which it keeps the whole of the lump sum if the number of potholes is less than reasonably anticipated but it almost automatically gets additional payments if that number exceeds what is reasonably anticipated.

Mr Lewis for the Authority prayed in aid of the Authority’s interpretation, more as a pointer than anything else, the notice provisions for compensation events, arguing that, if every pothole above an identifiable number is a compensation event, hundreds or possibly thousands of notices may well have to be given. Added to this are the requirements for quotations for each compensation event to be provided by Atkins when instructed and the need for each compensation event to be assessed by the Service Manager. In my judgment, this is a fair point but it is no more than a pointer and is certainly not determinative of the issue.

Atkins through its Counsel argues (respectfully) that the arbitrator not only got the wrong answer but did not "have a keen grasp of what was being asked of him". It is said that he misunderstood and therefore did not deal with the nub of Atkins’ Secondary Case which was and is that "a defect" can mean a pothole and, subject to satisfying the first three bullet point conditions in Clause 60.1(11) the fourth condition is satisfied if the pothole which is the subject matter of the actual or potential compensation event is one which exceeds the number of potholes which an experience contractor/consultant would have judged at the Contract Date to have such a small chance of being present that it would have been unreasonable for it to have allowed for that latest defect (exceeding that number).

I consider that it is very important that, where the Court is asked to conduct an exercise to determine whether or not in reality and substance an arbitrator has failed to deal with all the issues put to it within the meaning of Section 68(2) (d), the Court is not required to carry out a hypercritical or excessively syntactical analysis of what the arbitrator has written. This is particularly so where the arbitrator in question is not only eminent and highly respected in his field but also has immense legal experience in the relevant field of law concerned. In a clear and obvious case, of course the Court will find that the ground exists and can then move on to consider whether or not the circumstances merit interfering with the award.

It may be helpful if I approach the serious irregularity point from the reverse. The Court can only intervene under Section 68 in respect of any established irregularity "as has caused or will cause substantial injustice”. For the reasons given above, I do not consider that in the result the arbitrator was wrong in his overall reasoning and conclusion or that Atkins is right in its assertion as to what the Contract means. It follows that there is no substantial injustice even if an irregularity was established.

I do not however consider that any such irregularity has been established. Although there were references to other clauses, the vast bulk of the argument revolved around what the wording in Clause 61.1(11) meant as a matter of ordinary and/or commercial English. When one reads the Interim Award one can see that the arbitrator in Paragraph 3.1 appreciated the importance of defining the dispute upon which the decision was required; the reason for that was obvious because the Secondary Case as formulated was in relatively anodyne terms (as set out in Paragraph 3.2). I have no doubt from the written submissions to the arbitrator and from the Interim Award itself that Issue (ii) (as the arbitrator called it) was shorthand or a form of words for the issue as to whether the volume (or more accurately the number) of potholes was immaterial in the establishment of any entitlement under the clause. I have no reason to doubt that the arbitrator summarised the agreement that Issue (ii) was to be determined by the arbitrator. That is supported by the evidence which has been submitted. One needs to bear in mind that the clause albeit split into various requirements, is a composite clause. There can be no criticism in broad terms of the summaries of the parties’ cases at Paragraphs 5 and 6 of the award. In particular Paragraph 6.2 provides what appears to be a reasonable summary of the Authority’s case. The arbitrator seems to have addressed Issue (ii) from Paragraphs 7.9 through to 7.23. What for instance the arbitrator said in Paragraph 7.9 about the "excess" volume or number being “said to constitute the "defect" within sub-clause (11)" could be described, if one was being over-syntactical, as technically a misdescription of the argument. However, taken in the round, it is not necessarily a misdescription if what, as I strongly suspect was the case, the arbitrator was referring to the meaning of a "defect" within the context of all the wording in the sub-clause; put another way, what he probably was doing was summarising the point made by Atkins that the number of potholes comes into the equation in the determination of whether any given pothole is a compensation event. The arbitrator, rightly and properly, looked in some detail at the fourth bullet point requirement and it is clear, particularly from Paragraph 7.21, that he is analysing verbally whether the words (“such a small chance of being present that it would have been unreasonable for him to have allowed for it”) can sensibly relate to a foreseeable or allowable number of defects as being something upon which a claim could be based.

Whilst some arbitrators might have highlighted some different reasoning and proceeded to analyse the wording in verbally a different way, it is simply impossible to say that that there has been any, let alone a serious, irregularity here in circumstances in which, based on the words which the arbitrator himself uses, he knew what the area of issue was, analysed the wording, reviewed the commercial context and came to the decision which he did.

Section 70 sets up in effect a procedural bar to claims under Section 68 and 69 if the applicant or appellant has not first exhausted any “available arbitral process of appeal or review”, and any “available recourse under section 57”. There are therefore two aspects of the matter which need to be considered.

The first point is what if any "arbitral process of appeal or review" was available. The parties agreed on the use of the ICE Arbitration Procedure 1997, Part H of which deals with awards. Paragraph 21.3 states:

One then turns to Section 57 to consider what if anything could or should have been done by Atkins under those provisions. In the light of my findings above, there was nothing of any relevance for Atkins to apply to the arbitrator for, because the award was not deficient either in reasoning or in regularity. Even if I was wrong about that, at best Atkins would have been seeking additional reasoning from the arbitrator to make it clear that the arbitrator had, so to speak, "got the point". It is of interest that Section 57(3)(b) talks about the need for “an additional award in respect of any claim"; the use of the word "claim” is in contrast to the wording in Section 68(2)(d): "failure…to deal with all the issues that were put to it". A failure to deal with an argument supporting a claim does not necessarily mean that the claim was not dealt with in the award, although that may well be a matter of fact and degree if there was for instance only one argument supporting the claim. Furthermore, it could properly be said that Section 57(3) is inapplicable because the parties did have a procedural agreement as set out in Paragraph 21.3 of the Arbitration Procedure. In the light of these matters and of the Torch case, I do not consider that there has been any failure under Section 70(2) of the Arbitration Act 1996 which would debar Atkins from pursuing such remedies as it might have under Sections 68 and 69.

It should be clear from the earlier parts of this judgment that I do not consider that the arbitrator was wrong. So far as permission to appeal is concerned, even less so do I consider that it could be said that he was "obviously wrong". There was, rightly, no real argument that the determination of the point in issue would substantially affect the rights of the parties and that the question was one which the arbitrator was asked to determine and, therefore, the threshold criteria set out in sub-sections 69(3)(a) and (b) of the Act are satisfied.

It becomes in one sense a technicality as to whether I give permission to appeal or not because I have felt it necessary to answer the issue as a matter of construction for the purpose of determining the application under Section 68. But for that application, I would have found that the question of law, that is the construction of Clause 61.1(11), did raise a question of "general public importance" because the Contract is not a one-off contract, it is widely used throughout the country, it incorporates the NEC3 conditions albeit somewhat amended and it raises an issue about potholes which are an increasingly widespread problem in times of economic downturn, government spending reviews and cuts and, not insignificantly, a perhaps seriously changing weather pattern which may impact on the causes of the problem. I felt that the statement by the Authority that there were no "formal claims" on the other contracts to be somewhat elliptical albeit I am certain that it was not intentionally misleading, because it is not clear what a "formal" claim is. I would however have refused permission because I do not consider, on balance, that the arbitrator’s decision in the result was "at least open to serious doubt". The arguments suggesting that the decision was open to serious doubt included the very fact that Mr Bartlett QC decided the other way demonstrated that the countervailing arguments by Atkins merited serious consideration. But whilst of course they do merit such consideration, the arguments overall reveal that the issue was not open to serious doubt.

It follows from the above that Atkins’ claims under Sections 68 and 69 are dismissed.