Mi-Space (UK) Ltd v Lend Lease Construction (EMEA) Ltd

An arbitration agreement may remain effective even where arbitration follows negotiation, dispute-board involvement and consensual procedures. The court must construe the dispute-resolution machinery as a whole. A contractual mechanism identifying arbitration as the final binding process can amount to an agreement to arbitrate, although preliminary steps remain outstanding.

Where an arbitration agreement applies, the court has no power under CPR 31.16 to order pre-action disclosure. In any event, such relief requires a focused and proportionate request directed to clearly identifiable issues and documents. A request intended to investigate whether a claim might exist, or to audit extensive project costs, is a fishing expedition and should be refused.

Mi-Space, a principal sub-contractor on a target-cost construction project, applied for pre-action disclosure from Lend Lease. The parties’ sub-contract contained a multi-stage dispute-resolution procedure involving negotiation, a Dispute Review Board, possible mediation and arbitration.

The central issues were whether the procedure constituted an arbitration agreement, despite the absence of an appointed Dispute Review Board and the preliminary stages, and whether the requested documents satisfied the statutory conditions for pre-action disclosure.

1. Arbitration agreement. The sub-contract incorporated Schedule 5, which required the parties to use best endeavours to resolve disputes through the stated procedures. The procedure culminated in a provision that the dispute would be finally settled by arbitration. Read as a whole, this was a binding agreement to submit disputes to arbitration under section 6(1) of the Arbitration Act 1996.
2. The absence of an appointed Dispute Review Board did not prevent the procedure from operating. The contract contained machinery for appointment, and the court could grant specific performance if a party refused to appoint a member. The statutory appointment powers in sections 16(1) and 18 of the Arbitration Act 1996 provided an additional longstop where the appointment procedure failed.
3. The mediation provisions did not displace arbitration. They were to be read consistently with the mandatory language providing for final settlement by arbitration. Mediation was available only consensually, whereas arbitration was the ultimate binding process.
4. Because the disputes fell within the arbitration agreement, the court had no jurisdiction to order pre-action disclosure under CPR 31.16. The application therefore failed.
5. Separately, the application failed the disclosure requirements. The likely issues were unclear, the evidence showed concerns that there might be contractual breaches, and the request sought extensive material enabling Mi-Space to investigate whether it had a claim. The categories were disproportionate and insufficiently focused. If there had been jurisdiction, the court would have made no order or limited disclosure to documents already offered by Lend Lease.

The application was dismissed.