UK: What Was The Extent Or Scope Of A Settlement Of An Arbitration? When Did The Arbitrator Become Functus Officio Or Cease To Have Jurisdiction?

Last Updated: 22 February 2011
Article by Andrew Hales

The case of Dawes v Treasure & Son Ltd [2010] EWHC 3218 (TCC), which came before Mr. Justice Akenhead raised issues about the point or stage at which an arbitrator becomes functus officio or ceases to have jurisdiction and the extent, ambit or scope of a settlement of an arbitration.

The Facts

Treasure and Son Ltd ("Treasure") was a contractor engaged by Mr Dawes to carry out construction works pursuant to a building contract which incorporated the JCT Standard Form of Prime Cost Contract (1998 Edition with Amendments 1 and 2).

Treasure obtained an adjudication decision requiring Mr Dawes to pay to Treasure a certain amount. That decision was not honoured and Treasure successfully enforced that decision in the Court, with the Court giving judgment on 25 October 2007. A dispute was then referred to Court regarding whether payment in relation to the judgment had been made by Mr Dawes' daughter.

Before the first set of court proceedings, on 6 July 2007 Treasure referred a dispute to arbitration. The dispute arose from Mr Dawes' alleged failures to pay sums due under the contract as well as for Mr Dawes' alleged breaches of contract. At this stage, the dispute relating to the repayment of the sum which was to be the subject matter of the adjudicator's decision had not been referred to arbitration; this money was not paid out until after the enforcement in Court, in November 2007.

The parties entered into a settlement agreement during the arbitration proceedings, but Mr Dawes then commenced further proceedings relating to defects in Treasure's works. The arbitrator ruled that Mr Dawes' defects claims had been settled. Mr Dawes argued that he had only used the defects as a defence and they were not at that stage advanced as a counterclaim. Mr Dawes subsequently commenced Court proceedings that raised the following issues.

The Issues

Did the arbitrator become functus officio, apart from issues relating to costs, either immediately upon or shortly after the settlement between the parties or at least after the 1st Costs Award?

If he retained jurisdiction, was he right to find that the settlement effectively compromised amongst other things all claims for defects raised in the arbitration proceedings?

The Decision

Mr Dawes' two claims against Treasure were dismissed.

The Judge decided that:

  1. the arbitrator did have jurisdiction to consider and decide whether the settlement agreement between the parties covered all claims for the defects specifically pleaded in the Amended Defence and Cross Claim; he was not functus officio when he did consider and decide that issue, and
  2. the arbitrator's Award on the defects issue was right; the settlement effectively compromised all claims for defects raised in the arbitration proceedings.

The Judge stated that the expression "functus officio" is not a term of art but in the context of arbitration it describes or implies the point at which an arbitrator has exhausted or concluded all that he or she had jurisdiction to deal with.

The Judge drew the following conclusions from the law and practice relating to arbitrations in relation to the point at which an arbitrator may become functus officio:

"(a) Primarily, as arbitration is, usually, a consensual process, one must look to the contract between the parties pursuant to which the arbitrator has been appointed to determine what the parties have agreed, expressly or by implication, about when an arbitrator's jurisdiction becomes exhausted.

(b) The settlement of a dispute after it has been referred to arbitration but before any final award does not generally, and certainly does not necessarily, bring to an end to the jurisdiction. Section 51 [Arbitration Act 1996] suggests that even if the dispute is settled there remains a jurisdiction to terminate the substantive proceedings and to resolve issues of costs or indeed any other matters remaining in dispute at that time. That jurisdiction is not expressed to be statutorily limited."

The Judge formed the view that the CIMAR Rules, agreed by the parties, expressly give a party a right "after an arbitrator has been appointed" to refer another dispute to the same arbitrator and the arbitrator has the right in effect to consolidate it with the existing proceedings. That is what in practice the arbitrator did in relation to the issue as to whether Mr Dawes' defects claim was effectively encompassed by the settlement. If all facets of the dispute including costs and interest had been resolved then the arbitrator would have ceased to have jurisdiction. In the present case, the arbitrator retained the jurisdictional obligation at least on dealing with costs and could therefore address the defects claim.


The CIMAR Rules influenced the outcome of this case, in that they provided for the arbitrator to have jurisdiction over any further disputes referred to him following his initial appointment. Notwithstanding the specific facts of the case, the decision emphasises the significance of the terms of the arbitration agreement and the rules under which the arbitration is conducted, in determining when the arbitrator has exhausted or concluded all that he or she had jurisdiction to deal with.

On the face of it, the Treasure/Dawes arbitration did not encompass overly complex substantive issues, but disagreements still arose over the scope of the settlement. The Judgment highlights the importance of clearly analysing the scope of pleaded claims and cross claims to determine which matters are in issue between the parties when entering into any settlement agreement. This is especially so when the parties, as they did here, put forward multiple claims, positive defences and cross claims.

This article is one of a series contributed by Fenwick Elliott to the Building website. To see further articles in this series please go to

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.